Evers v. Marklein: Wisconsin Adopts the Chadha Standard— Legislative Vetoes of Administrative Rules Declared Unconstitutional

1. Introduction

In Evers v. Marklein, 2025 WI 36, the Supreme Court of Wisconsin answered a long-percolating constitutional question: may a small legislative committee unilaterally halt, suspend, or indefinitely block an executive-branch rule without passing a new law? The court, in a 4-3 decision authored by Chief Justice Karofsky, said “no,” invalidating five statutory provisions that empowered the Joint Committee for Review of Administrative Rules (JCRAR) to “pause,” “object to,” or “suspend” administrative rules at various points in the rulemaking process.

The case arose in the context of two hot-button rules—a Board of Marriage and Family Therapy ban on conversion therapy and a Department of Safety and Professional Services (DSPS) update of the Commercial Building Code—both of which had been stymied by JCRAR’s use of these statutes. Petitioners (the Governor and several state agencies) framed the issue as one of “legislative veto,” arguing that the committee’s power violated the bicameralism and presentment requirements of the Wisconsin Constitution. Respondents (individual legislators and the Wisconsin Legislature) relied on decades-old precedent (Martinez and SEIU) upholding temporary legislative oversight devices.

2. Summary of the Judgment

Statutes struck down. Wis. Stat. §§ 227.19(5)(c), (d), (dm) (pre-promulgation pause, objection, and indefinite objection) and §§ 227.26(2)(d), (im) (post-promulgation suspension and multiple suspensions) are facially unconstitutional.
Constitutional basis. Articles IV and V require bicameral passage and gubernatorial presentment for any legislative action that “alters the legal rights, duties or relations of persons outside the legislative branch.” The court expressly adopted the United States Supreme Court’s reasoning in INS v. Chadha, 462 U.S. 919 (1983).
Precedent overruled. The decision overrules Martinez v. DILHR, 165 Wis. 2d 687 (1992) and portions of SEIU v. Vos, 2020 WI 67, which had upheld limited or multiple suspensions of rules.
Scope of relief. The five provisions are void in all applications; therefore, JCRAR may no longer pause, object to, or suspend rules absent full legislative enactment.
Issues not reached. Because the court resolved the case on bicameralism/presentment grounds, it declined to decide alternative separation-of-powers and as-applied challenges.

3. Analysis

a. Precedents Cited and Their Influence

INS v. Chadha (U.S. 1983)
• Held the federal “legislative veto” unconstitutional because it bypassed bicameralism and presentment.
• Wisconsin majority imports Chadha’s functional test (“alters legal rights outside legislature”) into state constitutional interpretation, treating it as persuasive authority despite textual differences.
Martinez v. DILHR (Wis. 1992)
• Upheld a single three-month suspension by JCRAR, describing it as a permissible “legislative check” on agency power.
• Majority now labels Martinez “unsound in principle,” faulting it for ignoring bicameralism/presentment and for relying on “procedural safeguards” rather than constitutional text.
SEIU v. Vos (Wis. 2020)
• Relied on Martinez to approve “multiple suspensions” of rules.
• Overruled to the extent it depends on Martinez.
Other State Cases. The court collected decisions from New Jersey, West Virginia and Missouri, each invalidating state-level legislative vetoes and reinforcing Chadha’s approach.

b. The Court’s Legal Reasoning

Textual foundation. Articles IV §§ 1, 17, 19 (legislative power; form of enactment) and Article V § 10 (presentment/veto) combine to create a mandatory lawmaking process.
Adoption of the “Chadha test.” If a legislative act changes legal rights or duties outside the legislature, it must proceed via a bill. Committee objections, pauses and suspensions clearly effectuate such changes (they stop rules that otherwise would bind agencies and the public).
Facial invalidity. Because the challenged statutes authorize such extra-legislative alterations in every application, they cannot be saved through narrowing constructions.
Departure from stare decisis. Special justification exists: Martinez and SEIU misapplied the constitution, and adherence would perpetuate frequent, potentially permanent circumvention of bicameralism/presentment. The majority emphasised the supremacy of constitutional text over prior wrongly-reasoned cases.

c. Impact on Wisconsin Law and Government

Dismantling the “legislative veto.” JCRAR may still receive proposed rules and issue non-binding comments, but any binding stop (pre- or post-promulgation) now requires passage of a bill through both houses and gubernatorial action.
Rulemaking speed. Agencies could see shorter timelines; statutory pauses vanish, clearing the path from governor’s signature to publication. Controversial rules may therefore take effect more quickly.
Legislative strategy shift. The legislature, if dissatisfied with a rule, must (a) amend the underlying statute, (b) enact an outright repeal, or (c) restrict delegation ex ante (e.g., tighter statutory standards, sunset clauses, mandatory affirmative legislation).
Judicial role. Courts may face more “nondelegation” suits as observers question whether broad rulemaking grants themselves remain valid without robust legislative oversight.
Political dynamics. Because JCRAR’s membership reflects partisan control of each chamber, its power loss may tilt practical control of policymaking toward whichever party holds the governorship.

4. Complex Concepts Simplified

Bicameralism: The constitutional requirement that a proposed law pass both legislative chambers (Assembly and Senate) in identical form.
Presentment: The step requiring the legislature to deliver a passed bill to the Governor, who may sign or veto it.
Legislative Veto: A device allowing one house or a committee to nullify executive action without passing a new law. Popular in the 20th century, but constitutionally suspect after Chadha.
Administrative Rule: A regulation promulgated by an executive-branch agency under statutory authority; carries the force and effect of law.
Facial vs. As-Applied Challenge: Facial attacks seek to invalidate a statute in every circumstance; as-applied attacks target a specific fact pattern.
Separation of Powers: Doctrine assigning distinct legislative, executive and judicial powers to separate branches to prevent concentration of authority.

5. Conclusion

Evers v. Marklein is a watershed decision in Wisconsin administrative and constitutional law. By importing Chadha’s federal logic, the court elevates bicameralism and presentment as absolute preconditions for any binding legislative control over agency rules. In doing so, the majority both dismantles statutory tools built over nearly sixty years and signals the court’s willingness to revisit—and, if necessary, overrule—functional compromises that depart from strict constitutional structure. Going forward, the legislature will need new strategies to monitor the administrative state, and agencies will operate with fewer immediate legislative checks. Whether this rebalancing prompts tighter statutory delegations, fuels renewed nondelegation arguments, or alters partisan power dynamics, one point is clear: committee-level “legislative vetoes” in Wisconsin are now unconstitutional, and the lawmaking process must run through the full constitutional gauntlet every time the legislature wishes to bind— or unbind—the executive branch and the People of Wisconsin.