Wisconsin Gov. Tony Evers address the Legislature in his 2024 State of the State message. (Baylor Spears | Wisconsin Examiner)

Gov. Tony Evers is suing the Wisconsin State Legislature for clarification on administrative rulemaking powers after a state Supreme Court decision earlier this year found that lawmakers were unconstitutionally blocking administrative rules indefinitely. 

Since the Wisconsin Supreme Court’s Evers v. Marklein II decision in July, Evers has taken steps to implement 12 administrative rules that were approved by him, but without getting the sign off from committees. His administration has said the additional approval isn’t needed. 

However, Republican lawmakers have objected to Evers implementing the rules without going through the legislative committees, instructing the Legislative Reference Bureau not to publish any rule that hasn’t gone through a review by the Legislature in accordance with Wisconsin law. 

“The Legislature cannot continue to indefinitely obstruct my administration from doing the people’s work — and the Wisconsin Supreme Court agrees, but Republican lawmakers are continuing their unlawful behavior anyway,” Evers said in a statement about the court filing. “At the end of the day, this lawsuit is about following the law and making sure there’s accountability for elected officials if they fail to do so. It shouldn’t take going to court to get Republican lawmakers to comply with state law and Supreme Court decisions, but it seems like that’s what it’s going to take, unfortunately.” 

Evers argues in the filing in Dane County Circuit Court that the state law that barred agencies from publishing rules that hadn’t gone through the Joint Committee on the Review of Administrative Rules was invalidated under the state Supreme Court ruling. 

“No statute bars agencies from promulgating final administrative rules pending a legislative committee’s review,” the filing argued. “And even if any such statute existed, it would be facially unconstitutional under Evers II… a legislative committee cannot have discretion over a pre-promulgation pause without violating constitutional bicameralism and presentment procedures. Such a statute would also unconstitutionally intrude on the executive branch’s authority to execute statutes that authorize administrative rulemaking.”

Evers is asking for a declaration and an injunction that orders the Legislative Reference Bureau must publish the nine rules the Evers Administration has already submitted and all administrative rules that have completed all preceding rulemaking procedures and been approved by the governor. 

Assembly Speaker Robin Vos (R-Rochester) and Senate President Mary Felzkowski (R-Tomahawk) said in a statement that Evers is directing agencies to violate “valid” parts of Wisconsin law that “no court has ever questioned, let alone found to be invalid in any respect.”

“Just because Governor Evers is now a lame duck who no longer believes he is accountable to the people, it does not give him the right to ignore laws that the Legislature enacted, and a prior occupant of his office signed,” the Republican leaders said. “That’s not how the rule of law works.”