Democrats' court battle to unreform Wisconsin bureaucracy

[Geee]

Washington Examiner

On May 1, protesters were circling the Wisconsin state Capitol, denouncing regulatory overreach by the state Department of Health Services response to COVID-19. Meanwhile, less than a block away, Attorney General Josh Kaul was pulling another thread in his attempt to unravel reforms that have made Wisconsin’s administrative state the most transparent and accountable in the nation.

 

When Gov. Scott Walker swept into office in 2011 along with conservative majorities in both houses of the Wisconsin legislature, one of his first official acts was to call a special session to reform how the state did business. The media focused mostly on Walker’s collective bargaining changes in Act 10. But a bill with far more consequential effects on daily life, Act 21, became law around the same time.

Act 21 reined in Wisconsin's administrative state after a full century of expansion. Though the executive and legislative branches had been guilty of concentrating too much power in the bureaucracy, the administrative state had also taken more authority than elected officials had, in fact, delegated. This power grab has been aided and abetted by state courts. 

For example, in what should seem like a clear-cut delegation of power, the legislature authorized a Wisconsin agency to require sprinkler systems in buildings with “more than 20” apartments. However, based on a misguided doctrine of implied authority, the agency implemented rules requiring all buildings with more than eight apartments to have sprinkler systems. Wisconsin courts agreed that the phrase “more than 20” in the law actually meant "more than eight" because of broad and irrelevant language in the law's preamble.