Thursday, February 03, 2011

Today in Wisconsin: The legislature votes to make itself irrelevant, and the AG says only Republican judges can be right. (Publicus Proventus.)

Quite a banner day in Wisconsin politics, as that headline suggests.

In news that seems boring but is far more important than you'd expect, the Wisconsin legislature today decided to do away with "separation of powers." From Channel 3000:

The state Assembly has passed a bill granting Republican Gov. Scott Walker oversight of state agencies' rule-making powers.

The bill passed 59-34 Wednesday was derided by Democratic critics as nothing more than a power grab. Walker and supporters said it will increase accountability and help to rein in agencies that craft rules that exceed lawmakers' intent.

State agencies carry out laws that legislators pass by developing administrative rules, which have the force of law.

The bill passed would add a number of new steps to the rule-making process, including extensive economic impact studies.

It would also require the governor to sign off on a statement outlining a rule's scope before work could begin on a draft.

Rep. Mark Radcliffe was the only Democrat to vote for it.

Here's what you need to know: Legislatures pass laws, governors enforce them. To fill in the gap between very-broad-laws and very-specific-needs, for a long time now the legislature has let government agencies make rules that help implement the laws. (Rules like the one at issue in this case.) Those rules have the force of law, but the legislature can always amend, revoke, or otherwise affect them.

Which means that the agencies make the rules subject to legislative oversight: if a rule is made that the public (or the legislature) doesn't like, the Assembly and State Senate can vote to repeal the rule.

But now, the rules will have to be approved by Governor Patsy. Which seems all well and good to the GOP that passed these rules -- but that's because their guy is in charge. How will they feel when a Democrat gets elected?

Having ceded rulemaking power largely to the executive, the Legislature has made itself irrelevant. It can pass a law-- but Governor Patsy (or any future governor) can keep that law from being effectively implemented by simply vetoing any rules an agency tries to pass. In the past, governors would have had to do something like withhold funding or give directives regarding how to enforce rules. Now, the Wisconsin governor's office -- already gifted with the power to craft legislation via the line-item veto -- gets rulemaking authority, too.

In fact, it appears in Wisconsin that -- unlike what the first US Supreme Court Chief Justice said -- it's the province and duty of the executive to say what the law is. And executive includes Wisconsin AG J.B. "Van" Hollen, who's decided that Republican judges are the only judges who matter, so far as he's concerned. Reacting to the news that a judge has ruled the Health Care Reform Bill unconstitutional, "Van" said:

Obamacare is “dead” and the state is not legally required to carry out the new federal health care law. Van Hollen, the Badger state’s top law enforcement officer, issued a statement in the wake of a 78-page ruling by a federal judge in Florida on Monday, Jan. 31, striking down the federal health care reform plan as unconstitutional: “Judge Vinson declared the health care law void and stated in his decision that a declaratory judment is the functional equivalent of an injunction. This means that, for Wisconsin, the federal health care law is dead -- unless and until it is revived by an appellate court. Effectively, Wisconsin was relieved of any obligations or duties that were created under terms of the federal health care law. What that means in a practical sense is a discussion I'll have in confidence with Governor Walker, as the state's counsel.”

That's interesting for two reasons: First, while the AG is correct that the judge's decision was the "functional equivalent" of an injunction, meaning that federal officers are presumed to obey the law, and the law is here that the Court found the law unconstitutional, the AG doesn't say why he will listen to Judge Vinson and not other judges.

Judge Vinson is one of four judges to have ruled on the law so far -- and two of the four found it perfectly constitutional, while two have ruled against it. So how can "Van" Hollen pick which judge to listen to.

Secondly, if "Van" feels bound by everything a district court says, why isn't he making sure that same sex couples can marry in Wisconsin? After all, didn't a federal district court rule that marriage is a constitutional right? Yes, one did.

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