Taking power away from agencies isn’t new to Wisconsin’s political conversations. Political conservatives have been trying to do it for longer than a century, saying too much power has landed in the hands of non-elected officials.
But since the late 1800s, the Wisconsin Supreme Court has continually approved more powers for the executive branch and administrations of the state’s government.
May 13’s decision by the Wisconsin Supreme Court to overturn the Safer at Home order shows a possible turning of the tide against executive power in Wisconsin.
Joseph Ranney, a Madison-based attorney who is also a Schoone Fellow at Marquette Law School, says that the decision in the Safer at Home lawsuit is a change of pace from Wisconsin’s highest court. But he didn’t go as far as to say that we should expect Wisconsin’s executive branch to be weakened further, in part because of how narrow May 13’s decision was: four votes to three.
Ranney says that he has been a “history geek” since high school. Over the past few decades, he has taken on the thankless and unenviable job of studying and chronicling Wisconsin’s legal history.
He walked us through the major cases of the last 123 years of Wisconsin Supreme Court history regarding administrative power, and the court’s role in constructing our current political landscape.
What This Case Was Actually About, Probably
ONE THING RANNEY wanted to clear up is that the overturn of Safer at Home doesn’t really have much to do with the powers of the governor. It deals primarily with the power of Wisconsin’s administrative agencies: in this case, the Department of Health Services and its secretary-designee, Andrea Palm.
The question at hand, according to Ranney, is: “How far can an administrative agency go?”
In legal circles, the overturn of Safer at Home is referred to as “The Palm Case.” Despite Gov. Tony Evers’ support of Palm and his work in constructing Safer at Home, his choices and decisions aren’t particularly relevant to the landmark court case.
(Palm’s name is mentioned 104 times in the 161 pages of court documents related to the Supreme Court’s decision. Evers’ name comes up just seven times.)
Still, there isn’t consensus about what this case was even about. Disagreeing with Ranney, conservative-backed Brian Hagedorn (who surprised some by voting to keep Safer at Home in place) wrote in his dissent: “Some would like to characterize this case as a battle over the constitutional limits on executive power — can an executive branch officer really shut down businesses, limit travel, and forbid public gatherings? These are important questions for sure, but they are not what this case is about.”
Hagedorn pointed out that the two parties in the case — the Republican-led Legislature and the Department of Health Services — didn’t really bring up those questions in their arguments. They focused on perceived infringements on liberties amid a pandemic that has killed 312,000 people worldwide and more than 89,000 in the U.S.
“In striking down most of Order 28 (the Safer at Home order), this court has strayed from its charge and turned this case into something quite different than the case brought to us,” Hagedorn concluded. “The legislature may have buyer’s remorse for the breadth of discretion it gave to DHS … But those are the laws it drafted; we (Supreme Court justices) must read them faithfully whether we like them or not.”
IN OUR CONVERSATION with Ranney, he explained three landmark Wisconsin Supreme Court cases that created the current political world and how they relate to the Safer at Home case.
1. The Burdge Case
In 1897, there was Adams v. Burdge. That case ruled that the City of Beloit School District could not require students to get vaccinations. Later, the Wisconsin Legislature gave school districts that power, but school districts can’t do that on their own.
But it was during the Progressive Era, which really got going in Wisconsin with the election of Socialist-backed Gov. Bob La Follette in 1900, when these questions really started to matter.
2. The Lange Canning Case
The state started creating agencies to enforce the rules and policies created by the Legislature. It was necessary to do that “as society got more complex,” says Ranney.
One of the agencies created was the Industrial Commission, a precursor to the Department of Workforce Development. The Legislature had created policies that essentially said “Workplaces need to be safe,” according to Ranney. But elected officials didn’t want to spend their time defining the minutia of workplace safety rules.
“It took so much time for the Legislature to deal with that,” Ranney says.
So, the Legislature created the Industrial Commission to create and enforce those rules, similar to OSHA’s function on a national scale.
But even at the time, there was dissent. The conservatives of the Gilded Age said that this gave too much power to unelected bureaucrats.
The counter argument made at the time (and still being argued today) is that these agencies were/are becoming like a fourth branch of government. That doesn’t fit into the U.S. Constitution’s creation of just three branches: the law-making legislature, the courts and the executive branch. Where does it say that unelected officials can create rules with fines? Where does it say that, even during a pandemic, a Department of Health Services secretary-designee can force businesses to close on a statewide scale?
The first biggest challenge came in 1916 with the case of State v. Lange Canning Company. In it, the Lange Canning Company of Eau Claire argued that the independent powers of the Industrial Commission were too broad.
The Supreme Court at the time disagreed, since the Industrial Commission had been given its powers by the Legislature.
3. The Whitman Case
A similar decision came out 12 years after the Lange Canning Case. In what is now known as The Whitman Case, the Wisconsin Supreme Court ruled in 1928 that powers given to the Commissioner of Insurance (and thus other commissions and agencies) by the Legislature are still constitutional. Even if the commissions/agencies are staffed by unelected officials.
As noted by then-Supreme Court Justice Marvin B. Rosenberry (who later became the court’s 13th chief justice), the question at hand in Wisconsin Inspection Bureau v. Whitman “relates to the extent of the power which the legislature,” an almost identical question to the one at hand in this month’s case.
Where We Are Now
FOR THE PAST 25 YEARS, The Federalist Society (to which Ranney has been a contributor) and what Ranney called “the new conservatives” have been decrying oversteps by unelected officials, such as what was claimed with Palm.
But the overturn of Safer at Home marks the first time the Supreme Court has so profoundly agreed with those concerns, albeit by a slim 4-3 margin.
The split decision shows how “deeply divided” the justices are “in our own court,” Ranney says. He showed concern about how divided and political Wisconsin’s Supreme Court justices have become. Words weren’t minced from the four justices who voted to overturn Safer at Home, and the three justices who tried to keep it in place.
“Under the Wisconsin Constitution, all governmental power derives ‘from the consent of the governed’ and government officials may act only within the confines of the authority the people give them. The people of Wisconsin never consented to any elected official, much less an unelected cabinet secretary, having the power to create law, execute it, and enforce it,” Justice Rebecca Grassl Bradley wrote (adding her own underlines) in her concurring opinion, affirming the overturn of Safer at Home.
Grassl would go on to claim dissenting Justice Rebecca Dallet was using “fear tactics in lieu of the law.” Grassl also said she was shocked by Hagedorn’s decision to break with his fellow conservative-backed justices and claimed that Hagedorn’s decision “contains no constitutional analysis whatsoever, affirmatively rejects the constitution, and subjugates liberty.”
In her dissent, liberal-backed Dallet wrote that the justices who voted to end Safer at Home came to their conclusion by “torturing” a single law’s wording while “completely disregarding the longstanding, broad statutory powers the Legislature itself granted to the Department of Health Services,” such as through the court’s prior decisions that empowered administrative agencies in the past.
Hagedorn in his dissent wrote “this exercise of government power is appropriate for this crisis and for a nation ‘conceived in Liberty,’” in his dissent, calling back to the Gettysburg Address delivered by President Abraham Lincoln — a president who freely used “immense powers” during the Civil War and its accompanying constitutional crisis.