July/August 2025 Issue

Also in this issue: U.S. Supreme Court Eases Standard for Plaintiffs to Prove “Reverse Discrimination” Claims     |     Circuit Court Judge Upholds Local Wind Siting Ordinances

Wisconsin Supreme Court Decision Limits Legislative Oversight of Administrative Rulemaking

Lawrie J. Kobza | 08.04.25

On July 8, 2026, the Wisconsin Supreme Court issued a decision in Evers v. Marklein, 2025 WI 36 (Marklein II). On its face, the case was about the validity of five provisions of Wisconsin’s administrative procedures law. But as the opinions issued in the case demonstrate, bigger questions about the basis of administrative rulemaking more generally lurk below the surface.

The case involved Governor Evers’ challenge to five provisions in Wis. Stat. Chapter 227, which gave the Legislature’s Joint Committee for Review of Administrative Rules (JCRAR) the authority to ​“pause, object to, or suspend administrative rules for varying lengths of time, both before and after promulgation.”

The challenged sections were:

• Section 227.19 (5) (c) Stats. — specifies that an agency may not promulgate a proposed rule until JCRAR completes a review of the proposed rule. A review is completed either through expiration of a 30- to 60-day passive review period, waiver of its jurisdiction, or after any objection of the committee and subsequent legislative activity is concluded. The Court referred to this provision as a ​“pre-promulgation pause.”
• Section 227.19 (5) (d), Stats. — permits JCRAR to temporarily object to a proposed rule and prevents an agency from promulgating the rule for a period of time determined by legislative action on bills introduced by JCRAR in support of the objection.
• Section 227.19 (5) (dm), Stats. — permits JCRAR to indefinitely object to a proposed rule and prevents an agency from promulgating the rule unless a bill is enacted to authorize the promulgation.
• Section 227.26 (2) (d), Stats. — permits JCRAR to temporarily suspend an existing rule and prohibits an agency from enforcing the rule for a period of time determined by legislative action on bills introduced by JCRAR in support of the suspension.
• Section 227.26 (2) (im), Stats. — permits JCRAR to suspend a rule multiple times.

The Governor argued that these statutes resulted in an unconstitutional legislative veto of proposed administrative rules. The Legislature in response argued that rulemaking is an appropriate extension of legislative power and when an agency makes a rule, it must necessarily remain subordinate to the legislature with regard to it rulemaking authority. The Legislature’s argument was grounded upon two earlier Wisconsin Supeme Court decisions that upheld the constitutionality of the suspension and multiple suspension provisions (Martinez v. DILHR, 165 Wis. 2d 687, 702, 478 N.W.2d 582 (1992) and Serv. Emp. Int’l Union, Loc. 1 v. Vos, 2020 WI 67, ¶98, 393 Wis. 2d 38, 946 N.W.2d 35).

The Wisconsin Supreme Court, in an opinion authored by Justice Karofsky, agreed with Governor Evers and held each of the challenged statutes to be facially unconstitutional by violating the Wisconsin Constitution’s bicameralism and presentment requirements. The majority pointed to four constitutional provisions that define the Legislature’s power to make laws:

• Art. IV, Sec. 1: ​“The legislative power shall be vested in a senate and assembly.”
• Art. IV, Sec. 17(2): ​“No law shall be enacted except by bill.”
• Art. IV, Sec. 19: ​“Any bill may originate in either house of the legislature, and a bill passed by one house may be amended by the other”
• Art. V, Sec. 10(1)(a): ​“Every bill which shall have passed the legislature shall, before it becomes a law, be presented to the governor.”

The majority concluded that the five statutes at issue violated these constitutional requirements. The Court adopted the reasoning of the U.S. Supreme Court in Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 952 – 59 (1983), which determined that bicameralism
and presentment are required when legislative action alters the legal rights and duties of others outside the legislative branch. In this case, the court concluded, the five statutes at issue violate the principles of bicameralism and presentment because they improperly empower JCRAR (a legislative committee) to take action (the suspension of rules) that will alter the legal rights and duties of persons outside of the legislative branch. The majority rejected its prior decisions in Martinez v. DILHR and SEIU v. Vos as unsound in principle.

The majority notes that ​“the Legislature retains power over the administrative rulemaking process regardless of our determination here. The Legislature created the current process. It alone maintains the ability to amend, expand, or limit the breadth of administrative rulemaking in the other branches — as long as it adheres to the constitution, including the provisions of bicameralism and presentment.” However, it is unlikely that such legislation could be adopted and withstand a veto.

As a result of this decision, the path for adopting new administrative rules will be less onerous. JCRAR will no longer have the power to pause, object to, or suspend the adoption of an administrative rule. While the Legislature will still have the authority to adopt legislation to prevent the promulgation of an administrative rule, any legislation would be subject to the Governor’s veto.

Marklein II leaves for another day bigger questions about the legal status of administrative rules. If no law may be enacted except by a bill that meets the requirements of bicameralism and presentment — how then can an administrative rule become law? Where do administrative agencies get their rulemaking authority from? If agency authority is delegated from the legislature, why aren’t agency rules subject to bicameralism and presentment if JCRAR action (which is also delegated from the Legislature) is subject to these requirements. If agency action flows from the executive, where does the executive’s authority to create laws come from? These are some of the questions that Justice Hagedorn raises in his concurring/​dissenting opinion and that will undoubtedly be raised in future cases.