Wisconsin’s Legislative Vetoes Go to Court

In recent decades, the Wisconsin legislature has amassed a trove of veto powers. These are statutory provisions that allow a small number of legislators to override the governor or state agencies on issues like administrative rules, spending of already appropriated funds, and even compensation for executive branch employees. Now the governor, along with an intervening environmental group, is asking the Wisconsin Supreme Court to rein in these devices.

The case, Evers v. Marklein, focuses on the Wisconsin legislature’s Joint Committee on Finance and two statutory provisions that enable the committee — and sometimes even anonymous, individual committee members — to reject grant determinations and land acquisitions made by the state Department of Natural Resources under a state-funded environmental conservation program. But the challenged provisions are just the tip of the iceberg.

Wisconsin law is replete with provisions that give legislative committees the final word on significant statewide decisions, making the state a national outlier in the outsized powers given to small groups of legislators. In recent years, the Republican-dominated legislature has wielded these devices to block several of the Democratic governor’s key policies, as well as less salient matters that influence the day-to-day operation of state government.

This has included blocking an administrative rule that would ban the practice of “conversion therapy” for LGBTQ+ youth. Another high-profile conflict involved a committee holding up cost-of-living raises for university staff for nearly six months while pressuring the University of Wisconsin to cut back on its diversity, equity, and inclusion programming. Many more examples fly under the radar: the Joint Committee on Finance alone has over 100 similar powers, giving it final say over a wide range of ordinary decisions to spend already-appropriated funds.

In October 2023, the governor asked the state supreme court to hear an original action challenging several of these legislative devices. In a divided order, the court agreed to hear the claims related to the environmental conservation program, while holding the other claims in abeyance. The court’s three Republican-backed justices dissented, arguing that the court should let the case go through the lower courts first. But recognizing the case’s implications, one of the dissenting justices previewed that the eventual decision “could occasion a historic shift — both in the operation of state government, and in how this court interprets the boundary lines between the branches of government.”

The legal arguments in Marklein center around the separation of powers. At the federal level, the U.S. Supreme Court famously held that legislative vetoes violate the federal Constitution in its 1983 decision INS v. Chadha. Other state courts have overwhelmingly found legislative vetoes violate their state constitutions’ separation of powers principles, though the exact reasoning has varied. Wisconsin’s case law has not directly resolved the question. 

The parties divide over two constitutional arguments. First, the governor contends that once the legislature has appropriated funds to the executive branch for the implementation of existing law, the decision about how to spend money is an executive power that the legislature may not usurp. The legislature responds that it has constitutional authority over the expenditure of state funds and, further, that it has wide discretion to control the actions of administrative agencies like the natural resources department.

Second, the governor argues that the challenged provisions are unconstitutional because they permit the legislative branch to amend existing appropriations outside the constitutionally mandated lawmaking process of bicameralism and presentment. Under this process — which is also established in the U.S. Constitution and other state constitutions — a bill must pass both legislative chambers and then be presented to the governor for signature or veto.

In response, the legislature points to prior Wisconsin Supreme Court decisions that allowed a legislative committee to temporarily suspend administrative rules without passage of new legislation, arguing that the same reasoning of flexibility supports upholding the challenged programs. The governor contests the relevance of these decisions but also urges the court to overrule them.

Given the prevalence of legislative vetoes in Wisconsin, the decision will likely affect more than just the challenged provisions. Depending on the ruling, the court may decide to take up the additional claims currently held in abeyance that challenge other legislative vetoes on the books. The decision may also impact a separate lawsuit working its way through the state’s courts involving a legislative veto power over the state attorney general’s ability to settle lawsuits. That all means that Marklein likely won’t be the last word on legislative vetoes in Wisconsin — but it could be part of a historic shift.

Oral argument will take place on April 17, 2024 at 9:30 a.m. CT/10:30 a.m. ET and can be listened to here.

Derek Clinger is a senior staff attorney for the State Democracy Research Initiative at University of Wisconsin Law School, which filed an amici curiae brief submitted in the case on behalf of a group of legal scholars.