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The Wisconsin Supreme Court announced their decision in a case that strips the attorney general and governor’s office of powers and transfers it to the currently Republican-controlled legislature.
The case stems from the lame duck period in December of 2018, after governor Tony Evers and attorney general Josh Kaul won their elections, and the Republican-controlled state legislatures passed bills limiting that executive power.
The bills require legislative input over a host of administrative decisions, including decisions to leave or settle federal lawsuits and to seek federal waivers. They also required legislative input before administrative agencies could issue so-called guidance documents.
In a decision split in several parts, the court upheld a majority of the laws in the case. In one instance, though, Justices struck down a measure passed during the lame-duck session related to guidance documents written by state agencies.
Lester Pines, a lawyer representing Governor Evers in the supreme court case, says the guidance document requirement would have held up state government.
“The guidance document requirements were onerous and required the executive branch to go through this publication and comment and citation and certification process for any guidance document,” said Pines. “And that was going to hamstring state government and interfere with the governor’s ability to have an effective government.”
Governor Evers had previously called the lame duck laws a power grab.
Today, Evers released a statement on the Court’s decision, writing that the laws overrode the will of the people. The Governor also cited several other recent clashes with Republicans, writing “From the lame duck laws and challenging my veto power, to Safer at Home and holding an unsafe election this past April, clearly Republicans are going to continue working against me every chance they get, regardless of the consequences.”
Misha Tseytlin, the attorney for the Republican-controlled legislature, says the legislature simply wanted more of a say in what happens in the state.
“Let’s say we wanted to settle away something,” said Tseytlin. “Let’s say we looked at a case and we’re like ‘we really want a settlement of that case, we really want to give away this case.’ We would have absolutely no way to force the attorney general could litigate the case to the end. So he has that power. Sure if we knew from the beginning that the attorney general wasn’t going to defend the right to work law we could have intervened from the beginning assuming the federal court would have let us in, but we didn’t know that.”
Tseytlin says that court cases argued by the attorney general could affect state law and spending, which he argues the legislature should have more control over.
Republican leadership today released statements praising the decision.
Senate Majority Leader Scott Fitzgerald says the decision means QUOTE a rogue attorney general can no longer unilaterally settle away laws already on the books, while Assembly Speaker Robin Vos says the decision reaffirms that the legislative branch is equal to the executive branch.
Attorney General Kaul himself argued the case before the state supreme court. He argued that because the governor and the attorney general are members of the executive branch, the legislature’s action violated the separation of powers.
“Chief Justice Roggensack pointed to a federal law that creates what would be a permissible structure for the legislature to get involved in a case,” said Kaul. “If the executive branch doesn’t exercise its exclusive authority to represent the state in defense of a statute, that raises potential separation of powers issues. And there the appropriate action is not for the legislature to control the actions of the executive, that is a classic violation of separation of powers, it is for the legislature to give itself a right to be heard and to intervene in the case. That’s not what this statute does, which is why it is unconstitutional in all its applications.”
Governor Evers accused Republicans in the legislature of ignoring the voters who put him in office. Kaul echoed Evers’ sentiment in his own statement, saying that legislative Republicans had made it more difficult for governors to do their jobs.
There have been four court challenges to the bills limiting the power of Wisconsin’s governor and attorney general. Three have ruled in favor of the legislature, and one still has to be decided.
Tomorrow, the high court is expected to release a decision in a lawsuit challenging the Governor’s authority to issue partial vetoes to effectively rewrite legislation.
The decisions come as the state Supreme Court’s partisan makeup will soon narrow. Next month, conservative Justice Kelly will be replaced by liberal Dane County Circuit Court Judge Jill Karofsky, bringing the conservative control of the high court to a 4 to 3 conservative majority.