Wisconsin Supreme Court Strikes Down Legislative Committee’s Veto of Administrative Rules, Dramatically Reshaping Agency Rulemaking

Introduction
On July 8, 2025, the Wisconsin Supreme Court struck down five statutes that, since 2018, have empowered four members of a ten-member legislative committee, the Joint Committee for Review of Administrative Rules (“JCRAR”), to effectively veto an agency’s proposed and promulgated rules. See Evers v. Marklein (“Marklein II”), 2025 WI 36. In reaching this conclusion, the Court adopted a new interpretation of the Wisconsin Constitution’s bicameralism and presentment requirements, derived from the United States Supreme Court’s reasoning in Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983). By invalidating JCRAR’s legislative veto power, Marklein II profoundly reshapes the rulemaking process in Wisconsin by allowing administrative agencies to more effectively promulgate rules in areas within their statutory purview and areas of expertise.

Background
Bicameralism and Presentment:
The terms bicameralism and presentment describe the process that the Wisconsin Constitution requires the Legislature to undergo to enact laws. A law can only be enacted by bill, and before a bill becomes a law, the bill must pass through both houses of the Legislature—i.e., the Assembly and Senate—and be presented to the Governor for approval. Wis. Const. art. IV §§ 17, 19 & art. V, § 10(1). If the Governor approves the bill, or fails to act on it, the bill becomes law. Id., art. V, § 10. If, however, the Governor rejects the bill, the bill may still become law if a supermajority of both houses overrides the Governor’s veto. Id., art. V, § 10(2). Bicameralism and presentment constitute “carefully crafted constraints,” Marklein II, 2025 WI 36, ¶38, that “cabin the Legislature’s otherwise vast lawmaking powers,” id., ¶45.

In 1983, the United States Supreme Court ruled that, under the federal Constitution’s bicameralism and presentment analogs, an act performed by a legislative body is “legislative in its character and effect” if it has “the purpose and effect of altering the legal rights, duties and relations of persons . . . outside the legislative branch.” Chadha, 462 U.S. at 952. The United States Supreme Court reasoned that such a legislative act is subject to bicameralism and presentment. Id. at 954-55.

The Challenged Statutes:
The Legislature created JCRAR in 1966 to oversee agencies’ promulgation of rules. Marklein II, 2025 WI 36, ¶¶5-7. Since JCRAR’s creation, the Legislature has steadily expanded the committee’s powers, most recently during the 2017 lame-duck legislative session when the Legislature authorized JCRAR to indefinitely object to a proposed rule and to suspend promulgated rules in perpetuity through multiple suspensions. Id., ¶¶6-8. Prior to Marklein II, JCRAR could pause a proposed rule for review (Wis. Stat. § 227.19(5c)), object to the proposed rule (§ 227.19(d)), and indefinitely object to the proposed rule (§ 227.19(dm)). Post-promulgation, JCRAR could temporarily suspend a rule for 30 days (§ 227.26(d)) and suspend a rule multiple times (§ 227.26(im)).

In Marklein II, the Governor, joined by several administrative agencies (collectively, “the Governor”), challenged the five JCRAR statutes discussed above. The Governor argued that the statutes (1) violated the Wisconsin Constitution’s separation of powers principles, and (2) violated the requirements of bicameralism and presentment. Id., ¶2. Regarding the second argument, the Governor requested that the Court overrule two of its prior cases, Martinez v. DILHR, 165 Wis. 2d 687, 478 N.W.2d 582 (1992) and Serv. Emp. Int’l Union, Loc. 1 v. Vos (“SEIU”), 2020 WI 67, 393 Wis. 2d 38, 946 N.W.2d 35, which previously upheld JCRAR’s post-promulgation suspension and multiple-suspension powers, respectively. The Governor urged the Court to interpret the Wisconsin Constitution’s requirements of bicameralism and presentment according to the reasoning of the United States Supreme Court’s opinion in Chadha. The Governor argued the statutes were unconstitutional because they permitted JCRAR to alter the legal rights, duties, and relations of persons outside of the legislative branch, without undergoing bicameralism and presentment. See id., ¶¶27-29.

Discussion
In a majority opinion drafted by Chief Justice Karofsky, the Court invalidated the five JCRAR statutes on bicameralism and presentment grounds. Id., ¶45. The Court first concluded that Chadha’s reasoning applies to the Wisconsin Constitution’s bicameralism and presentment requirements. Id., ¶¶3, 32-35.

Adopting Chadha’s reasoning “mean[t]” overruling Martinez and SEIU—a departure from stare decisis that was justified on the ground that the cases were unsound in principle because they misapplied the Wisconsin Constitution. Id., ¶¶36-38. According to the Court, Martinez was unsound in principle because, in upholding a three-month rule suspension, it failed to address why the Wisconsin Constitution tolerates even “temporary departures” from bicameralism and presentment. Id., ¶37. In fact, the text of Articles IV and V “provides no exception to the bicameralism and presentment requirements when a legislative action alters the legal rights and duties of others.” Id., ¶38. And in upholding multiple suspensions of a rule, SEIU merely compounded Martinez’s error. Id.

The Court then assessed whether the five challenged statutes authorized JCRAR to alter the legal rights, duties, and relations of persons outside of the legislative branch, i.e., the Chadha test. It concluded that the pre-promulgation pause and objection statutes authorized JCRAR to alter the legal rights and duties of executive branch agencies that are required by law to promulgate rules. Id., ¶¶41-42. Moreover, the post-promulgation statutes empowered JCRAR to alter the legal rights and duties of both the agencies that implement rules and the people of Wisconsin that are affected by rules. Id., ¶43. Because the five challenged statutes empowered JCRAR to take actions that alter the legal rights and duties outside of the legislative branch without requiring bicameralism and presentment, the Court concluded that they were facially unconstitutional. Id., ¶45. Thus, the Court did not need to address the Governor’s argument about separation of powers.

Takeaways
Since 2018, the five statutes authorizing JCRAR’s legislative veto power have stymied agency rulemaking in areas such as vaccine requirements for childcare facilities and schools, firearm restrictions on waterways, and commercial building code updates. Regulated entities should expect smoother, and perhaps greater, rulemaking in the wake of Marklein II.

Although Marklein II was grounded in bicameralism and presentment, and the Court did not address the Governor’s separation of powers argument, the decision builds on the work of Kaul v. Wis. Legislature, 2025 WI 23. Kaul is a separation of powers decision that struck down a statute conferring a legislative veto over the executive branch’s settlement of civil enforcement and agency-directed lawsuits. Additionally, Marklein II opens the door for future bicameralism and presentment challenges to statutes authorizing other legislative committees to alter the legal rights, duties, and relations of Wisconsinites.


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