A prior post discussed how, in Becker, et al. v. Dane County, et al., Nos. 2021AP1343 & 2021AP1382, the Wisconsin Supreme Court recently turned back an effort to revive the non-delegation doctrine, a tool that—at least in its sharper versions—could be used to pare back much of the modern administrative state. This post picks up where that one left off and examines how and why the three dissenting justices would revamp the doctrine.

Justice R.G. Bradley’s stinging dissent, joined by Chief Justice Ziegler and Justice Roggensack, reframes this seemingly arcane dispute over non-delegation as presenting a stark choice between “defending liberty” and “facilitating unlimited future acts of tyranny.” What drives this aggressive rhetoric? She (and her fellow dissenters) saw Dane County’s public health officer as a “powerful government official” who had exercised “dictatorial powers for nearly two years” to combat COVID-19. To them, the remedy for this official’s “tyranny” was a reinvigorated non-delegation doctrine that would transfer her power back to local legislative bodies who are directly accountable to the electorate.

The dissenters’ strict non-delegation theory rests on a contested account of how our constitution separates and allocates powers among the executive, legislative, and judicial branches. By enacting our state constitution, the Wisconsin people transferred their “ultimate sovereign[ty]” over the power to make law to the legislative branch, and that branch alone. As a matter of constitutional text, this original delegation occurred through article IV, section 1, which provides that “[t]he legislative power shall be vested in a senate and assembly.” The Wisconsin Supreme Court has thus elsewhere called lawmaking a “core” legislative power that is “not for sharing.” Tetra Tech EC, Inc. v. Wisconsin Dep’t of Revenue, 2018 WI 75, ¶ 47, 382 Wis. 2d 496, 914 N.W.2d 21.

Justice R.G. Bradley found further support in article IV, section 22, a constitutional provision that allows the legislature to “confer upon the boards of supervisors of the several counties of the state such powers of a local, legislative and administrative character as they shall from time to time prescribe.” She saw this as a “carve out” to the exclusive vesting of legislative authority in the legislature that would make little sense, absent a baseline assumption that the legislative power may not reside elsewhere.

Wisconsin Supreme Court decisions around the turn of the 20th century operationalized these separation-of-powers basics through a strict non-delegation rule requiring that a law “be complete, in all its terms and provisions, when it leaves the legislative branch of the government” with “nothing … left to the judgment of the electors or other appointee or delegate of the legislature.” Dowling v. Lancashire Ins. Co., 92 Wis. 63, 74, 65 N.W. 738 (1896). But later decisions, in Justice R.G. Bradley’s telling, “uprooted” this attention to a law’s substantive content and instead analyzed whether it contains procedural safeguards that prevent overreach by the delegated power’s recipient. (It is accurate that in the mid-Twentieth Century, courts nationwide repudiated this aggressive reading of the non-delegation doctrine. Wisconsin’s Supreme Court was at the cutting edge of this trend, abandoning a stringent non-delegation approach almost a decade before the U.S. Supreme Court did so.)

In Justice R.G. Bradley’s opinion, the challenged public health orders flunked both versions of the non-delegation doctrine. As a matter of substance, Wis. Stat. § 252.03’s authorization that local health officials may “take all measures necessary” and “do what is reasonable and necessary” to prevent and suppress disease was, to Justice R.G. Bradley, a “substantially more open-ended grant of power than those this court has struck in previous cases.” And as a matter of procedural safeguards, she found cold comfort in the availability of judicial review and the legislature’s ability to amend the statute because neither imposes safeguards resembling those found in chapter 227’s rulemaking procedures.

Justice R.G. Bradley’s dissent thus leaves it somewhat unclear what exactly she would prefer to see replace current non-delegation doctrine. She saw the current permissive doctrine, with its focus on procedural safeguards, as sufficient to invalidate the challenged public health orders—she argued that they “imposed no meaningful procedural restraints” and thus that “[s]uch a broad grant [of power], without procedural safeguards, is patently unconstitutional.” No non-delegation overhaul would be necessary to reach that result, just a fourth justice interested in stricter procedural safeguards.

Elsewhere in the dissent, though, Justice R.G. Bradley trumpeted the need to “apply the original meaning of the Wisconsin Constitution’s structural safeguards,” referring to the current emphasis on procedural safeguards as “complacence” that “does not comport with the original meaning of the vesting clauses, which the court has an obligation to restore.”

What is that original meaning she seeks to restore? A passage she quoted from State v. Burdge, 95 Wis. 390, 70 N.W. 347 (1897), indicates her view:

The true test and distinction whether a power is strictly legislative, or whether it is administrative, and merely relates to the execution of the statute law, ‘is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law.’ The first cannot be done. To the latter, no valid objection can be made.

Such a doctrine would roughly track the Becker plaintiffs’ request that courts examine whether the legislature “laid down the fundamentals of the law,” leaving the recipient of the power to merely “fill up the details.”

But such a test would remain vulnerable to Justice Scalia’s classic critique that it would not be “readily enforceable by the courts” given that “no statute can be entirely precise, and that some judgments, even some judgments involving policy considerations, must be left to the officers executing the law and to the judges applying it.” Mistretta v. United States, 488 U.S. 361, 415 (1989) (Scalia. J., dissenting). Any judicial effort to police this line “becomes a debate not over a point of principle but over a question of degree.” Id.

Indeed, Becker itself reveals the difficulty that Justice Scalia identified. While the lead opinion found that the challenged order would have survived scrutiny even under the plaintiffs’ proposed stricter doctrine, the dissenters would have reached the opposite conclusion. In other words, the two opinions reached opposite results, even though they both claimed to apply the same, stricter doctrine. Leaving aside all other objections, this unpredictability would pose a significant problem to any reinvigorated non-delegation doctrine.

Take, for instance, Wisconsin’s Unfair Business Practices Law, codified at Wis. Stat. § 100.20. It broadly provides that “[u]nfair methods of competition in business and unfair trade practices in business are hereby prohibited” and empowers the Department of Agriculture, Trade, and Consumer Protection to “issue general orders forbidding methods of competition in business or trade practices in business which are determined by the department to be unfair.” The Department has used this authority to promulgate many rules covering topics like telemarketing (see Wis. Admin. Code ch. ATCP 127), landlord/tenant relations (see Wis. Admin. Code ch. ATCP 134), and telecommunications subscription and billing practices (see Wis. Admin. Code ch. ATCP 123). How would the authorizing statute fare under a stricter non-delegation doctrine? Does it “lay down the fundamentals of the law,” or does it give the Department “discretion as to what the law shall be”? Although the court of appeals in State v. Lambert, 68 Wis. 2d 523, 530, 229 N.W.2d 622 (1975), already rejected a non-delegation challenge to the statute, the answer seemingly lies in the eye of the beholder.

The big outstanding question, then, is where might Justice Hagedorn land in a future non-delegation case? Again, he asked for a more complete analysis “focused on the original understanding of our constitution”—but Justice R.G. Bradley plainly saw her dissent as presenting just that. It is therefore unclear what new arguments future challengers might offer to satisfy Justice Hagedorn. Absent something innovative, the door Justice Hagedorn ostensibly left open to a revived non-delegation doctrine is perhaps already shut.

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