At the end of its 2021-22 term, the Supreme Court released its long-awaited decision in Becker, et al. v. Dane County, et al., Nos. 2021AP1343 & 2021AP1382. The case affirmed the validity of orders issued by the joint public health department of Dane County and the City of Madison to control COVID-19 by, among other things, requiring face coverings and limiting gatherings. Specifically, the Court rejected a challenge by plaintiffs—the affected residents and businesses—to local health officials’ authority to issue orders under Wis. Stat. § 252.03 and enforce them through civil citations authorized by a county ordinance. It also rebuffed the plaintiffs’ contention that both legislative enactments violated the constitutional separation of powers by delegating too much legislative power to executive branch actors.

The decision’s impact on local health officials’ authority to combat COVID-19 is undoubtedly important. But perhaps the most significant part of the decision addressed the so-called “non-delegation doctrine,” a legal theory that carries the potential, if strictly applied, to gut the executive branch’s ability to act through state agencies.

Begin with the (relatively) straightforward statutory interpretation and preemption questions presented about local health officials’ authority to issue health orders. The Court first held that Wis. Stat. § 252.03 allowed such orders. The statute authorizes local officials to “take all measures necessary to prevent, suppress and control communicable diseases” and to “do what is reasonable and necessary for the prevention and suppression of disease.” The Court found that the broad “all measures” and “reasonable and necessary” language encompasses issuing orders, even though the statute never uses the specific word “order.”

The Court also rejected three preemption arguments. First, it disagreed that Wis. Stat. § 252.25, which penalizes violations of Department of Health Services orders, conflicts with the local ordinance that imposed parallel penalties. Second, it found that Wis. Stat. § 251.06(3), which imposes mandatory enforcement duties on local health officers, also is consistent with the ordinance’s additional enforcement measures. Third, it held that Wis. Stat. § 66.0113(1)(a), a provision that empowers counties to enact ordinances authorizing civil citations for ordinance violations, allows the ordinance at issue, since it did just that.

That brings us to perhaps the most impactful part of the decision: the rejection of the plaintiffs’ non-delegation argument. Critically, the Court delivered a split opinion on this point. While four justices—Karofsky, A.W. Bradley, Dallet, and Hagedorn—joined in the result, Justice Hagedorn broke from this part of the lead opinion and instead wrote separately. Although these two non-majority writings lack precedential value, they provide insight into where the Court may go the next time this issue arises.

The three-justice lead opinion on this issue declined the plaintiffs’ invitation to revamp the Court’s non-delegation jurisprudence. Generally speaking, for a century the Wisconsin Supreme Court has rejected a broad reading of non-delegation that would limit the legislative branch’s power to delegate legislative authority to other branches of government. During that time, the Court has consistently blessed legislative grants of authority that contained an “ascertainable purpose” and “procedural safeguards” to cabin that authority. The plaintiffs asked the Court to jettison that approach and replace it with one focused on whether the legislative branch itself made all relevant policy judgments, leaving the recipient of delegated authority merely to “fill up the details.”

Three justices concluded that Becker provided the “wrong vehicle” to reconsider the non-delegation doctrine. They emphasized that, unlike most other Wisconsin delegation cases, which involve delegations from the state legislature to the state executive, this one involved a delegation from the state legislature to local governments and from local legislatures to local executive officers. In their view, this unique form of delegation implicated different principles and constitutional provisions than those at issue in purely state-level delegation cases.

Nevertheless, for the sake of argument, the three justices went on to apply the plaintiffs’ proposed test and concluded that the challenged measures would have passed it anyway. They saw the statute and ordinance as aimed at “disrupt[ing] the transmission pathways of contagious diseases,” a substantive principle that limits local officials to taking “only public health measures reasonable and necessary to hinder the particular disease’s transmission.” Given that the state’s first legislature enacted a very similar public health statute, the three justices found that the modern statute provided an adequate description of the substantive delegated power. Likewise, the Court found sufficient procedural safeguards in the Legislature’s power to amend Wis. Stat. § 252.03, the availability of judicial review of orders issued thereunder, and various local controls over local health officers.

Justice Hagedorn departed from Justices A.W. Bradley, Dallet, and Karofsky on this critical issue. He first outlined his originalist theory of constitutional interpretation, explaining that “[w]hen interpreting the Wisconsin Constitution, our obligation is to discern the meaning of the words adopted by the people and faithfully apply them to the facts before us.” In his view, however, the plaintiffs wrongly relied on “general theories of government powers and selective quotes from federal and state cases” rather than an “honest examination of the original understanding of the Wisconsin Constitution.” The proper analysis, in Justice Hagedorn’s view, would require “examining how the nondelegation doctrine was understood in 1848 when our constitution was ratified,” or, put differently, a “historical inquiry to determine how [non-delegation] was understood in practice, keeping our eye out for on-point historical analogues.”

Applying that test, Justice Hagedorn placed great weight on the presence of the statutory analogue to Wis. Stat. § 252.03 that Wisconsin’s first legislature enacted in 1849. This 1849 statute provided that “[e]very board of health may take such measures, and make such rules and regulations, as they may deem most effectual for the preservation of the public health.” To Justice Hagedorn, this indicated that “[w]hen the Wisconsin Constitution was ratified, those participating in state government did not appear to understand the constitution to forbid giving local officials charged with protecting public health the authority to issue at least some orders of indeterminate character.”

Crucially, though, Justice Hagedorn said he “remain[s] open to more broadly reconsidering [the Court’s] approach to the nondelegation doctrine in future cases.” And he reiterated an earlier request that “parties who come to us advancing legal theories grounded in the Wisconsin Constitution … make every effort to present arguments focused on the original understanding of our constitution.”

What does this mean for future nondelegation cases and, by extension, the power of our state agencies? There is little doubt that three members of the Court—Chief Justice Ziegler and Justices R.G. Bradley and Roggensack—would favor much stricter limits on legislative delegations. Writing for the Becker dissenters, Justice R.G. Bradley described the Court’s earlier decisions that retreated from a strict non-delegation doctrine as “fail[ing] to uphold our constitution” and a “dereliction of duty.” More discussion of the dissenters’ contrary view will follow in a subsequent post.

Which view will prevail thus may turn on whether proponents of a strict doctrine can satisfy Justice Hagedorn’s request for a better analysis of non-delegation at Wisconsin’s founding. If Wisconsin’s first legislature delegated the power at issue (or its analogue), Justice Hagedorn will likely remain unmoved. But absent this kind of historical practice, the prospect of a strict, reinvigorated non-delegation doctrine—and with it, a radical deconstruction of the administrative state—remains alive and well.

(Note also that the Court has not yet resolved a motion for reconsideration filed by the Becker plaintiffs. It therefore remains possible, if unlikely, that the decision could still change in important ways.)

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