July 15, 2025 – The Wisconsin Supreme Court recently held (4-3) that five statutes giving the Wisconsin Legislature’s Joint Committee for Review of Administrative Rules (JCRAR) “the power to pause, object to, or suspend administrative rules for varying lengths of time” are facially unconstitutional.

“The challenged statutes … empower JCRAR to take action that alters legal rights and duties outside of the legislative branch,” wrote Chief Justice Jill J. Karofsky in Evers v. Marklein, 2025 WI 36 (July 8, 2025), joined by Justices Ann Walsh Bradley, Rebecca Frank Dallet, and Janet C. Protasiewicz.

“Because the statutes do not require bicameralism and presentment, [the statutes] are facially unconstitutional.”

Each of the three justices in the minority wrote a dissent.

Justice Brian K. Hagedorn, concurring in part and dissenting in part, criticized the majority’s choice to accept the case as an original action, leaving the panel devoid of the refinement that lower courts could bring to the arguments.

“Rather than issue a sweeping ruling on an uncertain foundation,” Justice Hagedorn wrote, “I would decide this case narrowly, apply our precedent, and save for another day the deeper questions that are insufficiently addressed by the parties and the majority."

Among those flaws, Justice Annette Kingsland Ziegler’s dissent summarized that “[t]he majority has created a grave constitutional imbalance by strictly construing, and thus confining, the constitutional powers of the legislative branch while not doing the same when it comes to the power of the executive branch.”

Going even further, Justice Rebecca Grassl Bradley examined fundamental principles that ground the Wisconsin’s constitution.

“The majority invokes the Wisconsin Constitution to take power from the People’s elected representatives in the [L]egislature and bestow it on the executive branch, empowering unelected bureaucrats to rule over the People,” Justice R.G. Bradley wrote.

Rules Halted

Gov. Tony Evers, the Department of Natural Resources (DNR), Board of Regents, Department of Safety and Professional Services (DSPS), and the Marriage and Family Therapy, Professional Counseling, and Social Work Examining Board (Board) challenged the JCRAR’s halting of two administrative rules as “unconstitutional legislative vetoes.”

Based on “national medical and psychological association guidance,” the Board proposed a rule listing conversion therapy – therapy intended to “convert” individuals to heterosexuality – as “unprofessional conduct.”

Using its power under the challenged statutes, the JCRAR halted the rule for a year and a half before the rule initially took effect. Six weeks after it did, the JCRAR suspended the rule. The rule finally took effect more than four years after the Governor signed it.

Under the challenged statutes, the JCRCR could “suspend this rule again, in perpetuity,” the majority explained.

A revision of the commercial building code by DSPS “comply[ing] with federal law and international guidance” for fire safety, accessibility, and engineering standards, the “JCRAR voted to indefinitely object.” The rule remains unpromulgated.

Legislative Control

The five statutes at issue represent growth of JCRAR’s administrative oversight power, which began in 1966 and expanded most recently in 2017.

Only a majority vote of JCRAR’s quorum suffices to act – as few as four members of the 10-member committee.

The statutes, including Wis. Stat. sections 227.19(5)(c), (d), (dm) allow JCRAR actions before promulgation, and Wis. Stat. sections 227.26(2)(d), (im) apply after a rule’s promulgation.

Just as JCRAR has had longstanding oversight of administrative rules, the Supreme Court allowed it for 33 years, the majority explained.

In Martinez v. Department of Industry, Labor & Human Relations (DILHR), 165 Wis. 2d 687 (1992), the Supreme Court held constitutional a three-month rule suspension because “an administrative rule is not legislation as such” and the halt was only temporary.

The practice was doubly fine in Service Employees International Union, Local 1 (SEIU) v. Vos, 2020 WI 67, which allowed a second, three-month pause because that hold was “a modest suspension that is temporary in nature.”

Chadha

The Governor and fellow plaintiffs argued the statutes are unconstitutional based on Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983), the majority explained.

Chadha challenged a statute that allowed the U.S. House of Representatives to override an Attorney General decision to suspend deportation.

The U.S. Supreme Court held that “federal legislative vetoes violated bicameralism and presentment because the vetoes altered the legal rights and duties of persons outside the legislative branch.”

The governor’s opponents, the Legislature, three senators, and three representatives, defended JCRAR’s practices based on Martinez and SEIU.

While recognizing only “special justification” could support overturning precedent, the majority said, keeping bad law was another harm.

In finding Chadha persuasive, the majority also noted that supreme courts in New Jersey, West Virginia, and Missouri made similar decisions involving their legislatures.

While Martinez failed to address “why a temporary suspension of bicameralism and presentment was constitutionally firm,” SEIU “compounded our error,” the majority said.

“In doing so, SEIU failed to adhere to the Wisconsin Constitution, which makes no allowance for temporary departures from Articles IV and V bicameralism and presentment requirements,” the majority explained.

The majority evaluated each statute on a two-part test based on Chadha: did the Legislature’s action impact any “rights and duties outside the legislative branch,” and if so, did the statutes still comply with bicameralism and presentment requirements?

The majority decided that all five statutes failed the test, rendering the statutes unconstitutional.

‘Judicial Modesty’

Both “the parties’ deficient arguments” and “the majority’s deficient answer” required “proceeding with caution,” Justice Hagedorn wrote.

Chadha does not interpret the Wisconsin Constitution and involved an entirely different situation than the challenged administrative rules, he clarified.

“[A]dministrative rules are not statutory law,” Justice Hagedorn explained. “Rather, administrative rules are downstream from statutes – subject to them and promulgated pursuant to their direction.”

Justice Hagedorn found the majority’s analysis “self-contradictory,” treating administrative rules as an executive power and implying it is a legislative power. “So which is it?”

The issues before the court, Justice Hagedorn advised, require “judicial humility and restraint,” settled on narrow grounds to decide the parties’ dispute.

As the Board’s rule is in effect, Justice Hagedorn found that claim moot. The indefinite hold on the DSPS rule fails under the limits required under Martinez, which necessitates that the JCRAR’s holds on rules apply temporarily.

‘Inconsistent Application’

Justice Ziegler’s dissent pointed out “the inconsistent application of constitutional principles,” a sign of preferring results rather “than the rule of law” – especially to one branch controlled by one political party, she argued.

This decision covers only one of three issues originally presented to the Supreme Court, which Justice Ziegler saw as a problem from the petition requesting original action.

Justice Ziegler said she raised concerns that separately resolving issues could lead to “disparate application of constitutional principles, namely, applying strict restrictions on the power of the legislative branch while not applying the same standard to the executive branch.”

The majority abrogates precedent and “again ends ‘a practice [that] has been approved, tacitly or explicitly, by all three branches of government’ for longer than some members of today’s majority have been lawyers,” Justice Ziegler wrote.

The majority’s decision falls into a pattern. “The four justices in today’s majority have been ‘downright aggressive’ in overturning precedents of this court with which they disagree,” Justice Ziegler noted in citing six decisions starting in 2022.

In reversing course, however, the majority “spends no time on the text of the Wisconsin Constitution: None” and provides a watery analysis, Justice Ziegler emphasized.

‘Unconstrained Executive Rule’

The majority’s decision, according to Justice R.G. Bradley’s dissent, yanks away the right of the Legislature to make laws, a role fundamental to the Framers and based on the political philosophy that created this country’s system of government.

“The majority rewrites the constitutional text to strangle ‘legislative action’ while unleashing unconstrained executive rule, exposing the People to the very nightmare against which [James] Madison warned.”

The “damage” began long before this dispute, driven by “necessity,” Justice R.G. Bradley explained.

“Of course, it is the legislature that created the problem in the first instance by statutorily creating an administrative state the constitution never contemplated.”

Although the majority claims to respect balance between branches, Justice R.G. Bradley asked, “What restricts the power of the unelected bureaucrats to impose rules on the people of Wisconsin and penalize them for noncompliance? According to the majority, none at all.”

“The [L]egislature lacks the authority to give its lawmaking power to another branch; the Wisconsin Constitution does not allow such reassignments even if the [L]egislature prefers to pass the hard political choices to unaccountable bureaucrats.”

“Precedent blessing this unconstitutional arrangement cannot override the constitution, the supreme law under which the People gave each branch its power.”