Wisconsin Supreme Court Strikes Down Legislative Vetoes

Bryna Godar is a staff attorney for the State Democracy Research Initiative at University of Wisconsin Law School, which filed an amici curiae brief in Evers v. Marklein on behalf of a group of legal scholars.

The Wisconsin Supreme Court last month struck several powers held by state legislative committees over executive branch actions, a landmark decision that will have broad implications and bring Wisconsin more in line with other states.

For years, Wisconsin has been an outlier in how much power its legislative committees wield. From blocking proposed administrative rules to dictating whether agencies can spend already appropriated funds, small groups of legislators have been able to exercise powerful vetoes over how the state is governed. In recent years, Republican-dominated legislative committees have used these powers to veto environmental conservation grants, administrative rules banning conversion therapy, and more.

In October 2023, Gov. Tony Evers (D) filed a challenge to these powers directly with the Wisconsin Supreme Court in a case called Evers v. Marklein. The court first took up only whether a legislative committee could veto the Wisconsin Department of Natural Resources’ expenditures of funds that had already been appropriated to an environmental conservation program.

In a 6–1 decision in 2024 (known as Evers I), the court struck down this legislative veto authority on separation-of-powers grounds, writing that “the power to spend appropriated funds in accordance with the law enacted by the legislature lies solely within the core power of the executive to ensure the laws are faithfully executed.” The court also noted that “the veto provisions undermine democratic governance by circumventing the lawmaking process — which requires the participation of the entire legislature — and punting to a committee the controversial and therefore politically costly positions legislators would otherwise need to take.”

The court left open a second question of whether a legislative committee can unilaterally block administrative rules. In July, in Evers II, the court answered that question in the negative, holding that legislative vetoes over administrative rules violate the Wisconsin Constitution’s bicameralism and presentment requirements—i.e., that laws must pass both houses of the legislature (bicameralism) and go to the governor for approval (presentment).

Specifically at issue were two rules a legislative committee had blocked for years, one banning conversion therapy by therapist and social worker licensees in the state and the other updating the state’s commercial building code. The plaintiffs brought both a facial challenge, arguing that the legislative committee’s veto powers should be entirely invalidated under the state constitution, and an as-applied challenge, arguing that even if the statutes could survive in some circumstances, the lengthy suspensions for these specific rules were unconstitutional. In prior decisions, the state high court had allowed legislative committees to temporarily pause or block administrative rules for several months but had concluded that permanently blocking rules without enacting new legislation would be unconstitutional.

In Evers II, the court overruled those prior decisions, concluding that it is unconstitutional for a legislative committee to even temporarily block a rule without enacting new legislation. In a 4–3 decision written by Chief Justice Jill Karofsky, the court adopted the U.S. Supreme Court’s formalist approach in INS v. Chadha, holding that “legislative action that alters the legal rights and duties of persons outside of the legislative branch triggers the requirements of bicameralism and presentment.” Applying this rule, the Wisconsin Supreme Court struck down a series of statutes that allowed a legislative committee to temporarily or indefinitely block proposed or promulgated administrative rules without going through the full legislative process.

Justice Brian Hagedorn concurred in part, adding a fifth vote for the conclusion that the legislative committee’s objection to the proposed building code rule was unconstitutional given its indefinite nature. He dissented from the broader ruling, however, arguing that deeper questions about administrative rulemaking were “insufficiently addressed by the parties and the majority” and that the court therefore should not have reached the facial challenge.

Justices Rebecca Bradley and Annette Ziegler dissented in full. Invoking the non-delegation doctrine, Bradley argued that administrative rulemaking itself violates separation-of-powers principles, amounting to an unconstitutional delegation of lawmaking power. Ziegler critiqued the majority for applying separation-of-powers principles unequally to the legislature and the executive.

The Evers II decision marks a significant change in the administrative rulemaking process in Wisconsin, restoring agencies’ authority to make rules under state statutes without facing a veto from legislative committee members. Wisconsin’s rulemaking process remains subject to extensive procedural requirements and to judicial review, but legislative changes to agency rules must now follow constitutionally valid channels, such as traditional oversight or statutory revision. The court’s decision brings Wisconsin more in line with other states, where courts have overwhelmingly concluded that legislative vetoes violate their respective constitutions.

The impact of the decision may go beyond the specific powers at issue in the case. In recent decades, Wisconsin legislative committees have amassed dozens of powers that give them control over executive branch actions. In 2023, for example, one committee held up already-approved cost-of-living raises for University of Wisconsin employees for months amid a fight over the university’s diversity, equity, and inclusion spending. In another case this term, the Wisconsin Supreme Court unanimously struck down the Joint Committee on Finance’s approval power over certain types of Wisconsin Department of Justice settlements, concluding that the pre-approval requirement violated the constitution’s separation-of-powers principles. And the Joint Committee on Finance alone had 120 separate approval or veto powers as of 2023, although some of these have since been invalidated. The Evers decisions suggest major implications for these and other legislative committee vetoes, signaling a significant shift in how Wisconsin’s government will function going forward.

Suggested Citation: Bryna Godar, Wisconsin Supreme Court Strikes Down Legislative Vetoes, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Aug. 6, 2025), https://statecourtreport.org/our-work/analysis-opinion/wisconsin-supreme-court-strikes-down-legislative-vetoes