As those of you who live in Wisconsin probably noticed, yesterday the Wisconsin Supreme Court issued a decision declaring the most recent stay-at-home order from the Wisconsin Department of Health Services unconstitutional. From a practical level, this returns the choice of whether or not to open to businesses and communities. From a more esoteric perspective, the ruling preserves due process and the rule of law in Wisconsin by requiring agencies to operate only within the explicit bounds of their legislative authority.
But on a much more personal level, the case represents the culmination of nearly ten years of effort from the legal foundation where I work.
Almost ten years of lobbying, educating, and brief writing. Almost ten years of cases representing farmers and nurses and others regulated businesses.
All because agencies frequently use more power than the legislature specifically gave them and no one holds them accountable for it. But yesterday, the Wisconsin Supreme Court finally drew a line in the sand. Agencies can only use the authority explicitly granted to them by the Wisconsin Legislature. The Court explained:
¶51 “To place this contention in context, the reader should note that there is history underlying how courts have interpreted administrative agency powers. Formerly, court decisions permitted Wisconsin administrative agency powers to be implied. See Wis. Citizens Concerned for Cranes & Doves v. DNR, 2004 WI 40, ¶14, 270 Wis. 2d 318, 677 N.W.2d 612. In theory, “any reasonable doubt pertaining to an agency’s implied powers” was resolved “against the agency.” Wis. Builders Ass’n v. DOT, 2005 WI App 160, ¶9, 285 Wis. 2d 472, 702 N.W.2d 433. However, the Legislature concluded that this theory did not match reality. Therefore, under 2011 Wis. Act 21, the Legislature significantly altered our administrative law jurisprudence by imposing an “explicit authority requirement” on our interpretations of agency powers. Kirsten Koschnick, Comment, Making “Explicit Authority” Explicit Deciphering Wis. Act 21’s Prescriptions for Agency Rulemaking Authority, 2019 Wis. L. Rev. 993, 997.
(As an aside, Kirsten is a former intern at the foundation where I work and a friend of mine. She deserves all the congratulations for getting cited!)
¶52 “The explicit authority requirement is codified at Wis. Stat. § 227.10(2m), which provides: “No agency may implement or enforce any standard, requirement, or threshold, . . . unless that standard, requirement, or threshold is explicitly required or explicitly permitted by statute or by a rule that has been promulgated in accordance with this subchapter[.]” Furthermore, Wis. Stat. § 227.11(2)(a)1.—3., as summarized by a recent comment in the Wisconsin Law Review, “prevent[s] agencies from circumventing this new ‘explicit authority’ requirement by simply utilizing broad statutes describing the agency’s general duties or legislative purpose as a blank check for regulatory authority.” Koschnick, Making “Explicit Authority” Explicit, at 996. The explicit authority requirement is, in effect, a legislatively imposed canon of construction that requires us to narrowly construe imprecise delegations of power to administrative agencies…”
While there are plenty of battles left to fight, this is a victory and one well worth celebrating.
It was worth wondering if I would fail my final because I had no time to study because I was at the office trying to get the brief finished with my boss. It was worth running the three blocks in high heels because none of us attorneys can get anything done on time without our support staff. (Who are all working from home and not around to help with the jammed printer!) It was worth locking myself out of the building and standing in the cold until the other intern came out to get me, forgot he also didn’t have a key, and so stranded both of us out in the cold. Actually…it was all worth it for the comical, pained expression when I handed over the blood-stained appendix to our brief because my boss stabbed himself with a stapler and we didn’t have time to print out another one before everything closed…
Ugh, just kidding. What an awful day that was. I knew there was a reason I didn’t blog about it. But guess what? It was worth it because incrementally, we preserve the rule of law by drawing clear lines for when an unelected, unchecked bureaucrat can regulate you and when it can’t. And that’s a reason to get out of bed in the morning. And run in high heels, get stabbed with a stapler, and freeze in the cold.