The Wisconsin Supreme Court will hear arguments on Friday in two important cases involving a bedrock principle of limited government. The two cases, Tetra Tech v. Wisconsin Department of Revenue and Wisconsin Department of Workforce Development v. Labor and Industry Review Commission, involve circumstances in which lower courts were required to defer to the decisions of Wisconsin administrative agencies on questions of statutory interpretation.  

In each case, the agency involved was interpreting the meaning of the statutes that govern its operations, and the rule in Wisconsin has been that the courts should defer – either completely or partially – to the decisions of state agencies about the proper interpretation of the statutes that they enforce. In both cases, the Supreme Court invited the parties to brief the question whether these rules about judicial deference to the executive branch – rules that have been created over the years by the courts themselves – have gone too far and should be reconsidered in light of the constitutional role of the courts to resolve questions of law.  

The judicial deference rules that have been slowly developed by the courts are as much as anything else a result of the increasing growth and complexity of government over the last century. The agencies of the executive branches of government at both the state and federal level have multiplied. And those agencies have been given greater and greater authority to exert some level of control over many different aspects of our citizens’ lives.  

The number of regulations that these agencies enforce and the level of their complexity is well-known. It is natural, at least to some extent, for courts to decide that they should defer to the judgment of agency experts in situations where their expertise and experience far exceeds the knowledge of individual judges.  

But as Thomas Jefferson once said, “the natural progress of things is for liberty to yield, and the government to gain ground.” What is natural can be dangerous. And liberty is at risk when the courts decide that they should defer to the executive branch not only on the matters within its particular expertise, but also on the purely legal question of whether the executive is acting within its legal authority or whether it has correctly interpreted laws governing important aspects of its mission.  

It is, after all, normally the duty of judges to interpret legislative enactments and to say what the law is. And the Wisconsin Constitution plainly says that all of the “judicial power” of the State of Wisconsin is vested in the courts.  Wisconsin Constitution, Article VII, Section 2. This constitutional principle should call into question any rule that can be seen as requiring Wisconsin courts to delegate their authority to say what the law is to someone who is not a judge.  

And the delegation of judicial authority is particularly a problem when it forces the court to defer to the judgment of the executive branch of government. Men are not angels. And it is probably not a good idea to let the very same agencies that are in charge of enforcing laws against Wisconsin citizens to say what those laws are, and thus resolve any disputes about the meaning of the law in their own favor.  

The doctrine of separation of powers and the checks and balances in our Constitution were intended to avoid exactly this kind of threat to liberty. The executive branch has the charge of enforcing laws passed by the legislature, but it is the judiciary who must decide what those laws mean and whether or not the executive is acting within them.     

The Wisconsin Institute for Law & Liberty believes that the doctrine of judicial deference must be reconsidered in light of the growth of the administrative state. We filed amicus curiae briefs in both cases, urging the court to impose strict limits on judicial deference, limiting such deference to non-legal issues that are really within an agency’s technical expertise. Questions of law should be decided by courts – not by the law enforcement agencies of the executive branch.

Mike Fischer is Senior Counsel with the Wisconsin Institute for Law & Liberty.
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