By Rick Esenberg and CJ Szafir

It’s simple civics. In our constitutional republic, the legislature makes the law and the executive carries it out. This is part of our cherished “separation of powers” by which each branch of government acts to check and balance the others. But State Superintendent of Public Instruction Tony Evers has violated this fundamental democratic principle. He wants the legislative power that, under the Wisconsin Constitution, is reserved only for the state senate and assembly.   

Here’s the problem. From time to time, it is necessary for the legislature to delegate a portion of this law-making authority to administrative agencies by empowering them to make rules. Because it is in tension with our constitutional separation of powers, this delegation must be carefully limited and controlled. Earlier this year, the Wisconsin legislature passed what is known as the REINS Act to do just that. The new law enlists the governor and Department of Administration to act as a check on agency rule making.

Something had to be done. The administrative state has grown out of control, permitting bureaucrats to write burdensome – and sometimes unlawful –  regulations. According to George Mason University’s Mercatus Center, Wisconsin has over 159,000 regulatory restrictions. It is the legislature’s hope that requiring the state’s most prominent executive officer and his Secretary of Administration to determine whether proposed rules are lawful and to approve rule-making will make agencies more accountable to the legislature and public.

But Evers is refusing to follow the new law. This is no insignificant matter. The Department of Public Instruction (DPI), which he oversees, has promulgated over 2,500 regulatory restrictions, impacting hundreds of thousands of students, teachers, and schools. Since the REINS Act went into effect on September 1, DPI has started to draft regulations pertaining to school vouchers, school mental health programs, and open enrollment. And not one of those rules is being drafted and adopted in accordance with the REINS Act.    

To force DPI to follow the law, we filed a lawsuit against it and Evers on behalf of a group of public school teachers and school board members.

Evers’ response was to decry the lawsuit as political and frivolous, while almost immediately using it to raise money for his gubernatorial campaign. But this case is not about politics or personalities. No executive officer or agency has the right to make rules unless the legislature says so. And if the legislature does authorize rules to be made, it can also specify the process by which they must be made.

Evers, on the other hand, believes the REINS Act infringes on his constitutional power to supervise public instruction under the state Constitution, relying on a recent state Supreme Court case called Coyne v. Walker.

Although Coyne did not address all of the features of the REINS Act that the superintendent now refuses to follow, a majority of the Court did vote to strike down part of an earlier law that empowered the governor to veto regulations proposed by the superintendent of public instruction.

But there was no majority opinion in Coyne. Because the Court could not agree on the reason for its action, the case did not establish a rule of law that might serve as clear precedent. A majority did, however, confirm that the legislature has the ultimate authority to determine the superintendent’s powers and that it is not prohibited from giving some authority over public education to others. The REINS Act is consistent with both principles.

We filed our case, Koschkee v. Evers, as an original action, going directly to the state Supreme Court. The public deserves to know as soon as possible if the rules that are being made in violation of the REINS Act are valid. Answering that question requires clarification – and, frankly, reexamination – of a previous Supreme Court case. Only our state Supreme Court can do that.

It is no surprise that Superintendent Evers wants as much power as he can get. But we believe that it is the legislature that makes K-12 educational policy in this state and decides when and how rules can be made. We believe that this important constitutional principle must be recognized and followed no matter whose ox is gored.

Rick Esenberg (@RickEsenberg) is President and General Counsel of the Wisconsin Institute for Law & Liberty (WILL)

CJ Szafir (@CJSzafir) is Vice President of Policy and Deputy Counsel of WILL

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