November 27, 2017
Tip of the Month:
A Look at Legislative Limits on Agency Discretion
In November’s Tip of the Month, Mitch Hagopian explains how the state legislature’s efforts to restrict the rule-making capacity of state agencies can provide a basis to challenge policy initiatives that exceed the scope of statutory authority.
Mitchell M. Hagopian
In its zeal to clamp down on the Department of Natural Resources, the Wisconsin Legislature has been steadily hacking away at the discretion state agencies have to issue rules that are not based on very specific authorization by the legislature.
But, so far, the legislature hasn’t figured out a way to single out the DNR for rulemaking limitations - so its amendments to Chapter 227 (the Wisconsin Administrative Procedure Act) apply to all agencies.
Take a look at Wis. Stat. chapter 227.10. This is the statute that created the mandate that agencies create policy by rulemaking: “Each agency shall promulgate as a rule each statement of general policy and each interpretation of a statute which it specifically adopts to govern its enforcement or administration of that statute.”1
Then look at Chapter 227.10(2m), added in 2011. This section prohibits an agency from implementing or enforcing “any standard, requirement, or threshold, including as a term or condition of any license issued by the agency, 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.”
Intrepid public interest lawyers who want to keep agencies (like, for example, the Department of Health Services) from retreating from longstanding policies and practices should consider using the Chapter 227.10(2m) restrictions to challenge new “standards, requirements or thresholds” that appear only in directives, policy memos, or contracts with DHS subcontractors.
At the very least, causing agencies to have to pursue legislative changes or formal rulemaking to accomplish anything will slow everything down, thereby preventing those agencies from devoting limited staff resources to other initiatives that harm Wisconsinites.
1 Wis. Stat. chapter 227.10(1).
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