Evers v. Marklein (2025 WI 36): Wisconsin Supreme Court Abolishes the Legislative Veto over Administrative Rules

1  Introduction

Case name: Tony Evers v. Howard Marklein
Court: Supreme Court of Wisconsin
Date: 8 July 2025
Procedure: Original action
Parties:

• Petitioners (the “Governor”): Governor Tony Evers and several executive-branch agencies.
• Respondents (the “Legislature”): The Wisconsin Legislature and six individual legislators.

The case concerns JCRAR, a ten-member legislative committee empowered by five statutes to pause, object to, or suspend executive-agency administrative rules (Wis. Stat. §§ 227.19(5)(c),(d),(dm) and 227.26(2)(d),(im)). Petitioners argued these provisions constitute an unconstitutional “legislative veto” because they allow a single committee to change legal rights without bicameral passage and presentation to the Governor.

In a 4-3 decision the Court agreed, adopting the United States Supreme Court’s reasoning from INS v. Chadha and overruling two long-standing Wisconsin precedents (Martinez and portions of SEIU v. Vos). The ruling invalidates every statutory mechanism by which JCRAR could unilaterally stop an administrative rule.

2  Summary of the Judgment

Chief Justice Karofsky, writing for the majority and joined by Justices A.W. Bradley, Dallet, and Protasiewicz, held that:

1. The Wisconsin Constitution’s bicameralism and presentment clauses (Art. IV §§ 1, 17, 19 and Art. V § 10) apply whenever legislative action “alters the legal rights and duties of persons outside the legislative branch.”
2. The challenged JCRAR statutes allow a handful of legislators (as few as four members) to delay or defeat duly promulgated rules without those constitutional safeguards; therefore they are facially unconstitutional.
3. Overruled precedents: Martinez v. DILHR (1992) and paragraphs 12 & 80-83 of SEIU v. Vos (2020) are unsound and incompatible with the adopted Chadha test.
4. Because the statutes are facially invalid, the Court declined to reach other separation-of-powers or as-applied arguments.

Concurring/dissenting opinions:

• Justice Hagedorn would resolve the case narrowly: he agrees the “indefinite objection” used against the building-code rule is unconstitutional under existing precedent but would leave the rest of the statutory scheme intact pending fuller briefing.
• Chief Justice Ziegler and Justice R.G. Bradley each dissented. They accuse the majority of selectively empowering the executive branch, eroding the separation of powers, and ignoring the original meaning of the Wisconsin Constitution.

3  Analysis

3.1  Precedents Cited and Their Role

• INS v. Chadha, 462 U.S. 919 (1983)
  The U.S. Supreme Court invalidated a one-House legislative veto of deportation decisions, insisting on bicameralism & presentment whenever Congress acts with “the purpose and effect of altering legal rights” outside the legislature. The Wisconsin majority explicitly adopts this federal test and transplants it into Wisconsin constitutional law.
• Martinez v. DILHR, 165 Wis. 2d 687 (1992)
  Upheld JCRAR’s temporary three-month suspension power as a permissible legislative oversight mechanism. The majority overrules Martinez as “unsound in principle.”
• SEIU v. Vos, 2020 WI 67
  Relied on Martinez to sustain JCRAR’s § 227.26(2)(im) “multiple suspension” power. Overruled in part.
• Other state decisions rejecting legislative vetoes (e.g., New Jersey’s General Assembly v. Byrne, Missouri’s Mo. Coalition for Environment) are cited as persuasive authority favouring bicameralism.

3.2  Court’s Legal Reasoning

1. Step 1 – Adopt Chadha Standard.
   Legislative action that changes legal rights triggers bicameralism and presentment. The majority emphasises the structural purpose: forcing deliberation among two houses and ensuring an executive check.
2. Step 2 – Application to Each Statute.
   
   • § 227.19(5)(c) (Automatic 30-/60-day pause) : Acts as a pocket-veto; prevents rules from taking effect and therefore changes external legal rights.
   • § 227.19(5)(d) & (dm) (Objection / Indefinite Objection): Halt or permanently block rules; alter rights of agencies, licensees, and citizens.
   • § 227.26(2)(d) & (im) (Suspension / Multiple Suspensions): Rescind already-effective rules, therefore clearly affect external legal relations.
   All five provisions fail because JCRAR acts unilaterally and no subsequent bicameral vote plus gubernatorial presentment is required.
3. Step 3 – Stare Decisis Analysis.
   The majority asserts special justification for overruling: previous cases misapplied the constitution, relied on functional rather than structural reasoning, and produced unworkable distinctions (temporary vs. permanent). Maintaining erroneous precedent would perpetuate constitutional harm.

3.3  Impact of the Decision

• Immediate Legislative Consequences
  JCRAR retains only advisory powers (hearings, information gathering). Any future legislative oversight of rulemaking must be enacted through full bills subject to gubernatorial veto.
• Executive Agencies
  Agencies now face fewer procedural obstacles between gubernatorial approval and rule publication, accelerating the rulemaking timetable.
• Future Litigation
  1) Expect challenges to other “legislative veto” style devices (e.g., passive review of contracts, appropriations earmarks).
  2) Dissenters signal potential revival of a strong non-delegation doctrine; litigants may test whether administrative rulemaking itself is constitutional.
• Political Dynamics
  • Strengthens the Governor vis-à-vis the Legislature.
  • Legislators may respond by narrowing agency enabling statutes or embedding detailed policy in legislation rather than relying on administrative expertise.
• Budget & Program Administration
  Because many fiscal-year 2025-27 appropriations assumed JCRAR oversight, the ruling could disrupt ongoing regulatory projects and delay current budget implementation until alternative accountability mechanisms are enacted.

4  Complex Concepts Simplified

• Bicameralism & Presentment
  The Wisconsin Constitution requires two steps for making any law: (1) passage by both houses (bicameralism) and (2) presentation to, and signature or veto by, the Governor (presentment). These steps ensure deliberation and an executive check.
• Legislative Veto
  A legislative device enabling one chamber, or even a committee, to cancel or change executive action without passing a new bill. Chadha labels such vetoes unconstitutional at the federal level; Evers v. Marklein now extends that logic to Wisconsin.
• Non-delegation Doctrine
  The principle that the Legislature cannot transfer its constitutionally vested lawmaking power to another branch without clear guiding standards. Although not squarely decided here, strong dissents suggest it will surface soon.
• Original Action
  A lawsuit filed directly in the Supreme Court (skipping lower courts), usually granted in matters of great public importance.

5  Conclusion

Evers v. Marklein marks the most significant reshaping of Wisconsin administrative law since Martinez. By embracing Chadha and striking down every statutory lever by which the Legislature could short-circuit agency rules, the Court dramatically enlarges executive authority while leaving the Legislature to police rulemaking only through the ordinary, and politically arduous, process of passing new statutes.

The decision’s long-term resonance may lie less in its specific holding than in the jurisprudential signals it sends: functional compromises—however entrenched—must yield to constitutional structure, and stare decisis will not shield practices the majority deems inconsistent with first principles. At the same time, fierce dissents warn that if the Court can excise legislative checks while tolerating wholesale delegation to the administrative state, the next constitutional reckoning may be over whether agencies may promulgate rules at all. In short, Evers v. Marklein both resolves a decades-old conflict and sets the stage for an even deeper debate over the nature of governmental power in Wisconsin.