2019 WI 76 

SUPREME COURT OF WISCONSIN

CASE NO.: 2017AP2278-OA 

COMPLETE TITLE: Kristi Koschkee, Amy Rosno, Christopher 

Martinson and Mary Carney, 

 Petitioners, 

 v. 

Carolyn Stanford Taylor, in her official 

capacity as Wisconsin Superintendent of Public 

Instruction and Wisconsin Department of Public 

Instruction, 

 Respondents. 

ORIGINAL ACTION 

OPINION FILED: June 25, 2019 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: April 10, 2019 

SOURCE OF APPEAL: 

 COURT: 

 COUNTY: 

 JUDGE: 

 

JUSTICES: 

 CONCURRED: R.G. BRADLEY, J., concurs (opinion filed). 

KELLY, J., concurs (opinion filed). 

 DISSENTED: A.W. BRADLEY, J., dissents, joined by DALLET, 

J., (opinion filed). 

 NOT PARTICIPATING: ABRAHAMSON, J., withdrew from participation. 

 

ATTORNEYS: 

For the petitioners, there were briefs filed by Richard M. 

Esenberg, Brian McGrath, CJ Szafir, and Wisconsin Institute For 

Law & Liberty, Milwaukee. There was an oral argument by Richard 

M. Esenberg. 

For the respondents, there was a brief filed by Ryan 

Nilsestuen, Benjamin R. Jones, and Wisconsin Department of 

Public Instruction, Madison. There was an oral argument by 

Lester A. Pines and Pines Bach LLP, Madison. 
2

An amicus curiae brief was filed on behalf of Wisconsin 

Association of School Boards, Inc., and the Wisconsin School 

Administrators’ Alliance, Inc., by Michael J. Julka, Richard F. 

Verstegen, M. Tess O’Brien-Heinzen, and Wisconsin Association of 

School Boards, Inc. and School Administrators’ Alliance, Inc., 

Madison. There was an oral argument by Richard F. Verstegen. 

An amicus curiae brief was filed on behalf of Peggy Coyne, 

Mary Bell, Mark W. Taylor, Corey Otis, Marie Stangel, Jane 

Weidner, and Kristin A. Voss, by Lester A. Pines and Pines Bach 

LLP, Madison. With whom on the brief was Christina M. Ripley and 

Wisconsin Education Association Council, Madison. There was an 

oral argument by Jeffrey A. Mandell and Stafford Rosenbaum LLP, 

Madison. 
2019 WI 76

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2017AP2278-OA 

 

STATE OF WISCONSIN : IN SUPREME COURT 

Kristi Koschkee, Amy Rosno, Christopher 

Martinson and Mary Carney, 

 Petitioners, 

 v. 

Carolyn Stanford Taylor, in her official 

capacity as Wisconsin Superintendent of Public 

Instruction and Wisconsin Department of Public 

Instruction, 

 Respondents. 

FILED 

JUN 25, 2019 

Sheila T. Reiff 

Clerk of Supreme Court 

ORIGINAL ACTION for declaratory judgment. Declaration of 

rights; relief granted.

¶1 PATIENCE DRAKE ROGGENSACK, C.J. This is an original 

action brought by Kristi Koschkee et al., two licensed teachers 

and two school board members, against Superintendent of Public 

Instruction (SPI) Carolyn Stanford Taylor and the Department of 

Public Instruction (DPI). The petitioners argue that the SPI 

and DPI must comply with the statutory requirement that, prior 

to drafting or promulgating an administrative rule, they must 
No. 2017AP2278-OA 

2 

receive written approval from the governor.1 The SPI and DPI 

argue that this requirement of gubernatorial approval is 

unconstitutional as applied to the SPI because, pursuant to 

Article X, Section 1 of the Wisconsin Constitution, no other 

officer may be placed in a position equal or superior to that of 

the SPI with regard to the "supervision of public instruction." 

¶2 We conclude that the gubernatorial approval 

requirement for rulemaking is constitutional as applied to the 

SPI and DPI, whether such approval authority is found in 2017 

Wis. Act 57 or in previous provisions of ch. 227. Article X, 

Section 1 vests supervision of public instruction, an executive 

function, in the SPI. In contrast, when the SPI, through the 

DPI, promulgates rules, it is exercising legislative power that 

comes not from the constitution but from the legislature. 

Stated otherwise, the legislature delegates part of its 

constitutional power to legislate to the SPI, DPI, and many 

other agencies in the form of rulemaking power. That the SPI 

also has the executive constitutional function to supervise 

 

1 The legislature imposed this requirement on all 

administrative agencies in 2011 with the passage of 2011 

Wis. Act 21. The petitioners initially argued that they sought 

to force the SPI and DPI to comply with the Regulations from the 

Executive in Need of Scrutiny Act, 2017 Wis. Act 57 (REINS Act) 

which introduced the requirements that (1) agencies submit scope 

statements to the Department of Administration (DOA), and 

(2) hold a public comment and hearing period on proposed rules. 

The petitioners later conceded that the SPI and DPI complied 

with these two requirements, and that their challenge was based 

on the constitutionality of the gubernatorial approval 

requirement as applied to the SPI and DPI. 
No. 2017AP2278-OA 

3 

public instruction does not transform the SPI's legislatively 

delegated rulemaking power into a constitutional supervisory 

function. Therefore, it is of no constitutional concern that 

the governor is given equal or greater legislative authority 

than the SPI in rulemaking. 

I. BACKGROUND 

¶3 2011 Wis. Act 21 (Act 21) amended sections of Wis. 

Stat. ch. 227 (2009-10), the Wisconsin Administrative Procedure 

Act. Prior to the passage of Act 21, an agency2 planning to 

draft an administrative rule submitted a "statement of scope" to 

the Legislative Reference Bureau (LRB) for publication, and to 

the "individual or body with policy-making powers over the 

subject matter of a proposed rule" for approval. Wis. Stat. 

§ 227.135(2) (2009-10). A scope statement describes the rule 

and its objectives, the statutory authority for promulgating the 

rule, the time and resources required to develop the rule, the 

entities affected, and a summary of relevant federal 

regulations. Wis. Stat. § 227.135(1)(a)-(f) (2017-18).3 After 

submitting the scope statement, the agency drafted the proposed 

 

2 "Agency" is defined broadly. An agency is "a board, 

commission, committee, department or officer in the state 

government, except the governor, a district attorney or a 

military or judicial officer." Wis. Stat. § 227.01(1). The SPI 

meets this description, and is therefore also considered an 

"agency" within the meaning of ch. 227. 

3 All subsequent references to the Wisconsin Statutes are to 

the 2017-18 version unless otherwise indicated. 
No. 2017AP2278-OA 

4 

rule and submitted it to the legislature for review. Wis. Stat. 

§§ 227.135-.19 (2009-10). 

¶4 Act 21 altered this procedure. Act 21 required an 

agency first to submit its scope statement to the governor for 

approval; agencies were prohibited from submitting a scope 

statement to the LRB until the governor issued a written notice 

of approval. An agency could not "perform any activity in 

connection with the drafting of a proposed rule . . . until the 

governor and the individual or body with policy-making powers 

over the subject matter of the proposed rule approve[d]." Wis. 

Stat. § 227.135(2). Additionally, rather than submitting final 

drafts of proposed rules directly to the legislature for 

approval, agencies were required first to submit final drafts of 

proposed rules to the governor for approval. Wis. Stat. 

§ 227.185. The proposed rule could not be submitted to the 

legislature for approval unless and until the governor again 

approved the rule in writing. Id. 

¶5 We reviewed these gubernatorial approval requirements 

in Coyne v. Walker, 2016 WI 38, ¶6, 368 Wis. 2d 444, 879 N.W.2d 

520, and decided that they were "void as applied to the [SPI] 

and his subordinates." Id., ¶4. There was no majority opinion 

in Coyne. Our mandate resulted from a one-justice lead opinion, 

a two-justice concurrence, and a one-justice concurrence, all of 

which agreed only on the outcome of the case. 

¶6 In 2017, the Wisconsin legislature passed the 

Regulations from the Executive in Need of Scrutiny Act, 2017 

Wis. Act 57 (REINS Act). The REINS Act added the requirement 
No. 2017AP2278-OA 

5 

that agencies submit scope statements to the Department of 

Administration (DOA), which determines whether the agency has 

authority to promulgate the rule. REINS Act, § 3. The DOA also 

makes a non-binding recommendation to the governor. REINS Act, 

§ 3. The REINS Act required agencies to hold a preliminary 

public hearing and comment period on the scope statement at the 

request of a co-chairperson of the Joint Committee on Review of 

Administrative Rules (JCROR). REINS Act, § 5. 

¶7 The REINS Act did not alter Act 21's requirement that 

an agency (1) submit a statement of scope to the governor for 

approval prior to drafting a proposed rule, and (2) submit a 

final draft of a rule to the governor for approval before 

submitting it to the legislature. 

¶8 The petitioners conceded at oral argument that the SPI 

and DPI had submitted scope statements to the DOA and held 

preliminary public hearings and comment periods upon request. 

However, the petitioners assert that the REINS Act "variously 

amends and reenacts parts of a comprehensive statutory scheme" 

and that their challenge therefore encompasses the "full suite 

of requirements" of ch. 227.4 The petitioners ask us to overrule 

Coyne's mandate and hold that the SPI and DPI must comply with 

the "full suite of requirements" of ch. 227, including the 

requirement for written gubernatorial approval both before 

drafting a proposed rule and before submitting a final draft of 

 

4 Petitioner's Reply Br. at 3. 
No. 2017AP2278-OA 

6 

a proposed rule to the legislature. We accepted the petition 

for original action, and now conclude that the requirement that 

agencies receive gubernatorial approval prior to drafting a 

proposed rule and again before submitting it to the legislature 

for approval is constitutional as applied to the SPI and DPI. 

Accordingly, we overrule our prior decision in Coyne v. Walker, 

368 Wis. 2d 444.5

 

5 Because our decision in Coyne v. Walker, 2016 WI 38, 368 

Wis. 2d 444, 879 N.W.2d 520 addressed some of the same statutory 

provisions and constitutional concerns we examine today, we 

consider whether the doctrine of stare decisis should be 

employed in the case before us. Progressive N. Ins. Co. v. 

Romanshek, 2005 WI 67, ¶41, 281 Wis. 2d 300, 697 N.W.2d 417. 

Stare decisis is a principle of policy that can add 

certainty to the law. State v. Denny, 2017 WI 17, ¶71, 373 

Wis. 2d 390, 891 N.W.2d 144. However, stare decisis does not 

require us to retain constitutional interpretations that were 

objectively wrong when made. See Wenke v. Gehl Co., 2004 WI 

103, ¶21, 274 Wis. 2d 220, 682 N.W.2d 405. This is so because 

such interpretations are unsound in principle. State v. 

Luedtke, 2015 WI 42, ¶40, 362 Wis. 2d 1, 863 N.W.2d 592 

(citations omitted). 

Furthermore, our mandate in Coyne arises from a lead 

opinion, joined by one justice, a two-justice concurrence, and a 

one-justice concurrence. When we are asked to overturn one of 

our prior decisions, lead opinions that have no common legal 

rationale with their concurrences are troublesome. For example, 

we cannot analyze whether "[c]hanges or developments in the law 

have undermined the rationale behind a decision," Luedtke, 362 

Wis. 2d 1, ¶40, if there is no "rationale" to analyze. We are 

in such a circumstance in the matter now before us. 

Accordingly, for the reasons set forth below, we conclude that 

an independent analysis of the issues presented herein better 

serves the interests of the public. 
No. 2017AP2278-OA 

7 

II. DISCUSSION 

A. Standard of Review 

¶9 We are required to interpret Article X, Section 1 in 

order to decide the pending controversy. Interpretations of 

provisions of the Wisconsin Constitution present legal 

questions. Custodian of Records for the LTSB v. State, 2004 WI 

65, ¶6, 272 Wis. 2d 208, 680 N.W.2d 792. This case also 

requires us to apply a statute. The interpretation and 

application of a statute to a given set of facts present 

questions of law as well. Marder v. Bd. of Regents of Univ. 

Wis. Sys., 2005 WI 159, ¶19, 286 Wis. 2d 252, 706 N.W.2d 110. 

B. Rulemaking Authority 

¶10 The Wisconsin Constitution establishes three separate 

branches of government, with "no branch subordinate to the 

other, no branch to arrogate to itself control over the other 

except as is provided by the constitution, and no branch to 

exercise the power committed by the constitution to another." 

State ex rel. Friedrich v. Dane Cty. Cir. Ct., 192 Wis. 2d 1, 

13, 531 N.W.2d 32 (1995) (citation omitted). Legislative power 

is vested in a senate and assembly, executive power is vested in 

a governor, and judicial power is vested in a unified court 

system. Wis. Const. art. IV, V, VII. 

¶11 "Legislative power, as distinguished from executive 

power, is the authority to make laws, but not to enforce them." 

Schuette v. Van De Hey, 205 Wis. 2d 475, 480-81, 556 N.W.2d 127 

(Ct. App. 1996). Powers constitutionally vested in the 

legislature include the powers: "'to declare whether or not 
No. 2017AP2278-OA 

8 

there shall be a law; to determine the general purpose or policy 

to be achieved by the law; [and] to fix the limits within which 

the law shall operate.'" See, e.g., Schmidt v. Dep't of Res. 

Dev., 39 Wis. 2d 46, 59, 158 N.W.2d 306 (1968) (quoting State ex 

rel. Wis. Inspection Bureau v. Whitman, 196 Wis. 472, 505 220 

N.W. 929 (1928)). 

¶12 A "rule" is "a regulation, standard, statement of 

policy, or general order of general application that has the 

force of law and that is issued by an agency to implement, 

interpret, or make specific legislation enforced or administered 

by the agency or to govern the organization or procedure of the 

agency." Wis. Stat. § 227.01(13). Therefore, when 

administrative agencies promulgate rules, they are exercising 

legislative power that the legislature has chosen to delegate to 

them by statute. See id. at 505-06 (the legislature "may 

delegate to administrative agencies the authority to exercise 

such legislative power as is necessary to carry into effect the 

general legislative purpose . . . . It [] leads to confusion 

and error to say that the power to fill up the details and 

promulgate rules and regulations is not legislative power."); 

Brown Cty. v. DHFS, 103 Wis. 2d 37, 43, 307 N.W.2d 247 (1981) 

("Where the legislature has set forth the 'fundamentals of a 

law, it may delegate to administrative agencies the authority to 

exercise such legislative power as is necessary to carry into 

effect the general legislative purpose.'") (citations omitted). 

¶13 From time to time, the legislature has used its power 

to create administrative agencies, such as the Department of 
No. 2017AP2278-OA 

9 

Health Services and the Department of Financial Institutions, 

and to delegate to agencies certain legislative powers. The 

legislature created DPI in 1967. Wis. Stat. § 15.37 (1967). 

¶14 Agencies are considered part of the executive branch. 

Citizens Concerned for Cranes and Doves v. DNR, 2004 WI 40, ¶14, 

270 Wis. 2d 318, 677 N.W.2d 612. They possess "'only those 

powers [that] are expressly conferred or [that] are necessarily 

implied by the statutes under which [they] operate[].'" See, 

e.g., Kimberly-Clark Corp. v. Pub. Serv. Comm'n, 110 Wis. 2d 

455, 461-62, 329 N.W.2d 143 (1983). The DPI is the 

administrative agency responsible for promulgating rules related 

to public instruction, and acts "under the direction and 

supervision of the [SPI]." Wis. Stat. § 15.37. 

¶15 The powers delegated to administrative agencies by the 

legislature include the power to promulgate rules within the 

boundaries of enabling statutes passed by the legislature. See 

Wis. Stat. § 227.11(2)(a) ("Each agency may promulgate rules 

interpreting the provisions of any statute enforced or 

administered by the agency, if the agency considers it necessary 

to effectuate the purpose of the statute, but a rule is not 

valid if the rule exceeds the bounds of correct 

interpretation."); State ex rel. Castaneda v. Welch, 2007 WI 

103, ¶26, 303 Wis. 2d 570, 735 N.W.2d 131. 

¶16 In Wis. Stat. § 227.19(1)(b), the legislature 

explained that its delegation of legislative power is a 

recognition of "the need for efficient administration of public 

policy," and it also outlined reservations of that delegation. 
No. 2017AP2278-OA 

10 

Accordingly, in its general rulemaking delegation, the 

legislature "reserves to itself" all of the following: 

1. The right to retract any delegation of rulemaking authority. 

2. The right to establish any aspect of general 

policy by legislation, notwithstanding any delegation 

of rule-making authority. 

3. The right and responsibility to designate the 

method for rule promulgation, review and modification. 

4. The right to delay or suspend the 

implementation of any rule or proposed rule while 

under review by the legislature. 

§ 227.19 (1)(b)1.-4. 

¶17 We have long recognized that "the delegation of the 

power to make rules and effectively administer a given policy is 

a necessary ingredient of an efficiently functioning 

government." Gilbert v. Med. Examining Bd., 119 Wis. 2d 168, 

184, 349 N.W.2d 68 (1984); see also Schmidt, 39 Wis. 2d at 58 

("[O]ur government could not efficiently operate without the 

administrator and administrative agency."). The administration 

of state government is complex. For example, "[t]he Wisconsin 

Administrative Code is more than 11,000 pages long with just 

under 1,800 chapters of regulations that affect businesses, 

local governments, licensed professionals, and consumers and 

touch[es] virtually every industry in Wisconsin." See, e.g., 

Jodi E. Jensen, Regulatory Reform: Moving Policymaking from 

State Agencies to the Legislature, 91 Wis. Law. 24, 25 (Oct. 

2018). 
No. 2017AP2278-OA 

11 

¶18 However, while the breadth of government legislation 

has resulted in some delegation of legislative power to 

agencies, such agencies remain subordinate to the legislature 

with regard to their rulemaking authority. Stated otherwise, 

agencies "ha[ve] no inherent constitutional authority to make 

rules, and, furthermore, [their] rule-making powers can be 

repealed by the legislature." Martinez v. DILHR, 165 Wis. 2d 

687, 698, 478 N.W.2d 582 (1992); Wis. Stat. § 227.19(1)(b)1. 

¶19 In addition, the case before us does not present 

issues that should give rise to a dogmatic exposition on the 

merits, or lack thereof, of administrative agencies. Rather, we 

are asked to determine the extent to which the legislature can 

change a past delegation of rulemaking authority when the SPI's 

rulemaking is affected. 

¶20 Legislative change and control of rulemaking are 

within the constitutional power of the legislature. Martinez, 

165 Wis. 2d at 698. As we have explained, an agency's "'powers, 

duties and scope of authority are fixed and circumscribed by the 

legislature and subject to legislative change.'" Id. (quoting 

Schmidt, 39 Wis. 2d at 56). Because the legislature has the 

authority to take away an administrative agency's rulemaking 

authority completely, it follows that the legislature may place 

limitations and conditions on an agency's exercise of rulemaking 

authority, including establishing the procedures by which 

agencies may promulgate rules. The legislature may therefore 

retract or limit any delegation of rulemaking authority, 

determine the methods by which agencies must promulgate rules, 
No. 2017AP2278-OA 

12 

and review rules prior to implementation. Wis. Stat. 

§ 227.19(1)(b)1.-4.; see, e.g., Wis. Realtors Ass'n v. Pub. 

Serv. Comm'n, 2015 WI 63, ¶23, 363 Wis. 2d 430, 867 N.W.2d 364. 

¶21 After the enactment of Act 21, agencies must first 

submit scope statements to the governor for approval; agencies 

may not submit scope statements to the LRB, or begin drafting 

any proposed rule, "until the governor issues a written notice 

of approval of the statement." Wis. Stat. § 227.135(2). 

Additionally, rather than submit final drafts of proposed rules 

directly to the legislature for approval, agencies must first 

submit final drafts of proposed rules to the governor for 

approval. Wis. Stat. § 227.185. A proposed rule may not be 

submitted to the legislature without a second approval of the 

governor. § 227.185. Act 21 therefore altered the 

legislature's delegation of rulemaking power to agencies by 

allowing the governor to block a proposed rule at two separate 

stages of the rulemaking process. 

C. SPI's Constitutional Authority 

¶22 The constitutional genesis of the SPI is found in 

Article X, Section 1, which provides: 

The supervision of public instruction shall be vested 

in a state superintendent and such other officers as 

the legislature shall direct; and their 

qualifications, powers, duties and compensation shall 

be prescribed by law. The state superintendent shall 

be chosen by the qualified electors of the state at 

the same time and in the same manner as members of the 

supreme court, and shall hold office for 4 years from 

the succeeding first Monday in July. The term of 

office, time and manner of electing or appointing all 
No. 2017AP2278-OA 

13 

other officers of supervision of public instruction 

shall be fixed by law. 

Wis. Const. art. X, § 1. Article X, Section 1 does not define 

the term "supervision." 

¶23 When we interpret an undefined constitutional term we 

examine the common law as it existed at the time the 

constitutional provision was enacted, the constitutional debates 

that bore on the undefined term, the plain meaning of the term 

at the time the constitutional provision was adopted, and the 

earliest interpretation in laws passed shortly after adoption of 

the constitutional provision or our opinions that interpreted 

the provision. See Polk Cty. v. State Pub. Def., 188 Wis. 2d 

665, 674, 524 N.W.2d 389 (1994) (citing State v. Beno, 116 

Wis. 2d 122, 136-38, 341 N.W.2d 668 (1984)). 

¶24 Our examination of the common law functions of the SPI 

at statehood provides no guidance, because an officer 

responsible for public education did not exist prior to 1848. 

Therefore, Article X, Section 1 did not "incorporate[] an 

ancient common law office, possessing defined powers and duties, 

into the constitution. Public instruction and its governance 

had no long-standing common law history at the time the 

Wisconsin Constitution was enacted." Fortney v. Sch. Dist. of 

West Salem, 108 Wis. 2d 167, 182, 321 N.W.2d 225 (1982). 

¶25 However, an examination of the plain language of 

Article X, Section 1, the Constitutional Conventions of 1846 and 

1848, and early cases and statutes addressing the SPI's 

supervisory authority demonstrates that supervision is an 
No. 2017AP2278-OA 

14 

executive function. "Stated otherwise, the framers of the 

Constitution chose no specific duties for the [SPI] in regard to 

'supervision of public instruction.'" Coyne, 368 Wis. 2d 444, 

¶185 (Roggensack, C.J., dissenting). Rather, powers and duties 

of the SPI were prescribed by law. Id., ¶143 (Prosser, J. 

concurring). 

¶26 Furthermore, the debates during the 18466 and 1848 

constitutional conventions surrounding the creation of the SPI 

confirm this plain-meaning interpretation of "supervision" as 

executive authority. Delegate Marshall M. Strong, for example, 

thought the SPI should "travel over the state, organize the 

system, and awaken people to the importance of [public 

education]." Journal of the Convention, reprinted in The 

Convention of 1846, 569 (Milo M. Quaife, ed., 1919). Another 

delegate, Wallace W. Graham, thought "there could be no uniform 

system" of public education without an SPI, because the 

legislature needed to receive "an annual report of the state of 

schools throughout the state" from "a man whose entire business 

it is to visit and know all of the schools." Id. at 568. 

Others disagreed and thought "the duties for a time might be 

 

6 As we have explained previously, the constitution drafted 

in 1846 was not approved by Wisconsin voters. However, it was 

rejected for reasons other than the article on education, and 

the 1846 and 1848 versions of the article on education were 

substantially identical. See Thompson v. Craney, 199 Wis. 2d 

674, 685 n.5, 546 N.W.2d 123 (1996). For this reason, the 

debates of 1846 are instructive in discerning the meaning of 

"supervision" as used in Article X. 
No. 2017AP2278-OA 

15 

done by the secretary of state or some other officer already 

provided for, leaving to the legislature to [create an SPI] when 

the time came." Id. at 569. None, however, appeared to believe 

that the SPI would possess the power to make laws. 

¶27 The debates during the Constitutional Convention of 

1848, which led to the ratification of the Wisconsin 

Constitution, similarly demonstrate that supervision of public 

education is an executive function. All writers reportedly "had 

agreed that the office [of the SPI] should have nothing to do 

with the machinery of the school system, or the management of 

the funds. He might be a most improper person for that duty. 

His province was to put the system in operation." Journal of 

the Convention to Form a Constitution for the State of Wisconsin 

324, Wisconsin Constitutional Convention (Tenney, Smith & Holt, 

printers, 1848). Delegates recognized that "[t]he duties of a 

superintendent were not of a fixed and well known kind, like 

those of political officers." Id. at 327. As previously 

mentioned, neither the office of the SPI nor a uniform system of 

public instruction existed in Wisconsin prior to 1848. For this 

reason, some argued that even the manner of choosing the SPI 

should be left to the legislature to decide. No part of the 

discussion, however, involved the suggestion that the SPI should 

have the power to make laws. 

¶28 The dictionary definition of "superintend" at the time 

of the debates further suggests that the framers viewed the SPI 

as possessing executive, but not legislative, authority. 

Webster's An American Dictionary of the English Language (new 
No. 2017AP2278-OA 

16 

rev. ed. 1847-50) defined "superintend" as: "[t]o have or 

exercise the charge or oversight of; to oversee with the power 

of direction; to take care of with authority; as an officer 

superintends the building of a ship or construction of a fort." 

Similarly, "superintendent" was defined as "one who has the 

oversight and charge of something with the power of direction." 

Id.; see Thompson v. Craney, 199 Wis. 2d 674, 684, 546 

N.W.2d 123 (1996). The framers of the Wisconsin Constitution 

understood the SPI's superintending function to be executive, 

not legislative, in nature. 

¶29 Our early cases regarding the SPI similarly confirm 

this plain-meaning analysis of Article X, Section 1 as granting 

the SPI the executive superintending function over public 

instruction, while giving the legislature the authority to 

determine the SPI's "qualifications, powers, duties and 

compensation." For example, in State ex rel. Raymer v. 

Cunningham, 82 Wis. 39, 51 N.W.2d 1133 (1892), the SPI directed 

the Secretary of State to pay him more than his $1,200 salary, 

plus the expenses actually incurred for his clerk's salary and 

actual travel costs. Id. at 39-40. However, in 1892, the 

Wisconsin Constitution provided that the SPI's "compensation 

shall not exceed the sum of twelve hundred dollars annually." 

Id. at 46. 

¶30 Wisconsin's public education system had grown 

considerably since the ratification of the Constitution in 1848. 

For example, the number of school age children had grown from 

80,000 to more than 600,000, the value of public school property 
No. 2017AP2278-OA 

17 

had grown from $50,000 to more than $10 million, and tax 

distributions for public education had grown from $92,000 to 

more than $4 million. Id. Raymer argued that the SPI had 

requested payment for greater expenses than he actually incurred 

as a way of evading the maximum constitutional salary of $1,200. 

Id. at 47-48. 

¶31 In our examination of the relationship between the 

legislature and Article X, Section 1, we said: 

[T]he section of the constitution cited prohibited the 

legislature from increasing the compensation of that 

officer beyond the amount named, yet it expressly 

authorized them to increase his duties and enlarge his 

powers and responsibilities ad libitum. This 

authority of the legislature has been from time to 

time freely exercised by especially enjoining new 

duties and imposing new and more onerous 

responsibilities. 

Id. at 47. We concluded that even though the constitution 

allowed the SPI a maximum salary of $1,200, the legislature 

remained free to define the SPI's activities and obligations 

however it chose. It was the legislature's province to make 

laws, and the SPI's province to administer them. See id. at 50 

("[I]t is a maxim, in construing a state constitution, that the 

legislature is authorized to exercise any and all legislative 

powers not delegated to the general government nor expressly nor 

by necessary implication prohibited by the national or state 

constitution."). 

¶32 Similarly, after the Wisconsin Constitution was 

ratified in 1848, the first legislation passed regarding Article 

X, Section 1 provided: 
No. 2017AP2278-OA 

18 

The superintendent shall have a general 

supervision over public instruction in this state, and 

it shall be his duty to devote his whole time to the 

advancement of the cause of education . . . . To 

recommend the introduction and use of the most 

approved text books, and to secure as far as 

practicable uniformity in education throughout the 

state: . . . To collect such information as may be 

deemed important in reference to common schools in 

each county, town precinct and school district: [] to 

ascertain the condition of all the school funds in 

this state with the amount of the school funds due to 

each township from lands or other sources: . . . to 

adjust and decide all controversies and disputes 

arising under the school lands without costs to the 

parties: [] to perform such other duties as the 

legislature or governor of this state may direct. 

Thompson, 199 Wis. 2d at 694 (quoting Section 3 of the Laws of 

1848, at 127-29). The specific instructions that the 

legislature gave to the SPI, such as his obligation to recommend 

"the most approved books" and to "ascertain the condition of all 

the school funds in this state" as well as a general directive 

that the SPI was "to perform such other duties as the 

legislature or governor of this state may direct" support the 

conclusion that the legislature defines the SPI's powers and 

duties, while the SPI administers them. 

D. Application 

¶33 Agencies in Wisconsin have no inherent authority to 

make rules. Their rulemaking authority comes from the 

legislature, and may be limited, conditioned, or taken away by 

the legislature. See, e.g., Martinez, 165 Wis. 2d at 697; Wis. 

Stat. § 227.19(1)(b)1.-4. 

¶34 The Wisconsin Constitution vests "supervision of 

public instruction," which is an executive function, in the SPI. 
No. 2017AP2278-OA 

19 

However, the SPI's powers and duties are set by the legislature. 

The SPI therefore has two different sources for its authority, 

one which arises from the Wisconsin Constitution and the other 

which is created by legislative delegation. The source for 

rulemaking is legislative delegation. Because rulemaking is not 

"supervision of public instruction" within the meaning of 

Article X, Section 1, it is of no constitutional concern whether 

the governor is given equal or greater legislative authority 

than the SPI in rulemaking. 

¶35 This conclusion is consistent with our decision in 

Thompson, where we reviewed then-governor Thompson's original 

action to have 1995 Wis. Act 27 (Act 27) declared 

constitutional. Thompson, 199 Wis. 2d at 677-78. Act 27 

"created a new state department, the Department of Education; a 

new Education Commission, which supervises the DOE; and a new 

office, the Secretary of Education." Id. at 678. The SPI was 

one of nine voting members of the Education Commission. Id. at 

679. The Secretary of Education served at the pleasure of the 

governor and could not be removed by the Education Commission. 

Id. at 678. The newly created Secretary of Education and 

Education Commission were given some of the SPI's constitutional 

functions to supervise education. Id. at 679. 

¶36 We held that Act 27 violated Article X, Section 1. We 

identified two "consistent themes" regarding the SPI from the 

constitutional debates: "first, that the system of education 

required uniformity; second, that the SPI was to provide this 

uniformity in an active manner by implementing the system of 
No. 2017AP2278-OA 

20 

education." Id. at 688-89. We concluded that "the 'other 

officers' mentioned in [Article X, Section 1] were intended to 

be subordinate to the [SPI]" with regard to the "supervision of 

public instruction" as the phrase is used in Article X, Section 

1. Id. at 698-99. Because Act 27 elevated others to a position 

equal or superior to the SPI with regard to the supervision of 

public instruction, it was unconstitutional. Id. at 698-99. 

¶37 The respondents argue that the provisions in this case 

are similarly unconstitutional because they elevate the governor 

to a position greater or equal to the SPI with regard to 

something the SPI does, as did 1995 Wis. Act 27. The 

respondents point out that we held in Thompson that "the 

legislature may not give equal or superior authority to any 

'other officer'" over the supervision of public instruction. 

Id. at 699. Article X, Section 1 requires that any "other 

officer" who participates in the "supervision of public 

instruction" must be subordinate to the SPI with regard to 

supervision of public instruction. Id. 

¶38 A major flaw in the respondents' argument is the 

assumption that everything the SPI does arises from a 

constitutional grant of authority to the SPI under Article X, 

Section 1. In reality, the SPI engages in some activities that 

arise from legislative enactments. Rulemaking is one of those 

activities. 

¶39 Although Thompson requires that no other officer be 

placed in a position superior or equal to the SPI with regard to 

the SPI's exercise of supervision of public instruction under 
No. 2017AP2278-OA 

21 

Article X, Section 1, rulemaking is not such a function. 

Rulemaking is a legislative power that does not fall within the 

SPI's supervisory constitutional authority under Article X, 

Section 1. Rulemaking is a legislative delegation to the SPI; 

therefore, it may be limited or taken away, as the legislature 

chooses. Wis. Stat. § 227.19(1)(b)1.-4. That the governor may 

be placed in a position superior or equal to the SPI with regard 

to rulemaking is consistent with Thompson and with Article X, 

Section 1. 

III. CONCLUSION 

¶40 We conclude that the gubernatorial approval 

requirement for rulemaking is constitutional as applied to the 

SPI and DPI, whether they are found in the REINS Act or in 

previous provisions of ch. 227. Article X, Section 1 vests 

supervision of public instruction, an executive function, in the 

SPI. In contrast, when the SPI, through the DPI, promulgates 

rules, the SPI is exercising legislative power that comes not 

from the constitution but the legislature. Stated otherwise, 

the legislature delegates part of its constitutional power to 

legislate to the SPI, DPI, and many other agencies in the form 

of rulemaking power. That the SPI also has the executive 

constitutional function to supervise public instruction does not 

transform the SPI's legislatively delegated rulemaking power 

into a constitutional supervisory function. Therefore, it is of 

no constitutional concern that the governor is given equal or 

greater legislative authority than the SPI in rulemaking. 

By the Court.—Declaration of rights; relief granted. 
No. 2017AP2278-OA 

22 

¶41 SHIRLEY S. ABRAHAMSON, J., withdrew from 

participation. 
No. 2017AP2278-OA.rgb 

1 

¶42 REBECCA GRASSL BRADLEY, J. (concurring). The 

majority correctly upholds the constitutionality of the 

legislature's decision to require gubernatorial approval of 

administrative rulemaking. I join the opinion except for those 

portions espousing the ostensible importance and necessity of 

the legislature's delegation of power to the administrative 

state. See majority op., ¶17.1 The concentration of power 

within an administrative leviathan clashes with the 

constitutional allocation of power among the elected and 

accountable branches of government at the expense of individual 

liberty. Although this case does not involve a challenge to the 

constitutionality of legislative delegations of power to 

administrative agencies, I encourage the court to be mindful of 

the structural separation of powers and the safeguards it 

employs to preserve the rule of law. 

¶43 The majority repeats the judiciary's longstanding 

perception that "the delegation of the power to make rules and 

effectively administer a given policy is a necessary ingredient 

of an efficiently functioning government." Majority op., ¶17 

(quoting Gilbert v. Medical Examining Bd., 119 Wis. 2d 168, 184, 

349 N.W.2d 68 (1984) (emphasis added)). The majority reiterates 

the notion that "[o]ur government could not efficiently operate 

 

1 I agree with the majority that the issues in this case do 

not require an "exposition"——"dogmatic" or otherwise——of the 

constitutional legitimacy of the administrative state. Majority 

op., ¶19. I write in response to the majority's endorsement of 

the necessity of delegating legislative power to administrative 

agencies. See majority op., ¶17. 
No. 2017AP2278-OA.rgb 

2 

without the administrator and administrative agency." Majority 

op., ¶17 (quoting Schmidt v. Department of Res. Dev., 39 

Wis. 2d 46, 58, 158 N.W.2d 306 (1968) (emphasis added)). The 

majority restates discredited principles, disregarding the 

incompatibility of "the system of bureaucratic rule that took 

root in the Progressive era and now reaches into virtually every 

realm of American life,"2 with the constitution's "deliberate 

calibration of incentives and control between the branches" 

reflected in the structural separation of powers. Gabler v. 

Crime Victims Rights Bd., 2017 WI 67, ¶7, 376 Wis. 2d 147, 897 

N.W.2d 384. 

¶44 The idea that the administrative state is necessary 

for good and efficient government "reflect[s] this belief that 

bureaucrats might more effectively govern the country than the 

American people" and facilitated "the progressives usher[ing] in 

significant expansions of the administrative state, ultimately 

culminating in the New Deal." Perez v. Mortgage Bankers Ass'n, 

135 S. Ct. 1199, 1223 n.6 (2015) (Thomas, J., concurring). 

Underlying the movement toward a burgeoning administrative state 

was the governing class's sneering contempt for the people who 

elect its members, along with impatience at any resistance of 

the people to the views of the enlightened: 

In government . . . the hardest of hard things is 

to make progress. . . . Nowadays the reason is that 

the many, the people, who are sovereign have no single 

ear which one can approach, and are selfish, ignorant, 

 

2 Charles J. Cooper, Confronting the Administrative State, 

25 National Affairs 96, 96 (Fall 2015). 
No. 2017AP2278-OA.rgb 

3 

timid, stubborn, or foolish with the selfishnesses, 

the ignorances, the stubbornnesses, the timidities, or 

the follies of several thousand persons,——albeit there 

are hundreds who are wise. 

Woodrow Wilson, The Study of Administration, Political Science 

Quarterly, Vol. 2, No. 2, 197, 207-08 (June 1887). Wilson 

lamented the inability of the unwashed masses to appreciate the 

suppositions of "perfectly instructed heads" who would produce 

"infallible, placidly wise maxims of government" because "[t]he 

bulk of mankind is rigidly unphilosophical, and nowadays [alas!] 

the bulk of mankind votes." Id. at 209. 

¶45 The philosophical roots of rule by bureaucratic 

overlords are antithetical to the Founders' vision of our 

constitutional Republic, in which supreme power is held by the 

people through their elected representatives, and "the creation 

of rules of private conduct" is "an irregular and infrequent 

occurrence." DOT v. Association of Am. R.Rs., 135 S. Ct. 1225, 

1252 (2015) (Thomas, J., concurring). The people can keep their 

rightful powers only if each branch of government "jealously 

guard[s]" the responsibilities the people conferred upon them. 

Gabler, 376 Wis. 2d 147, ¶31 (quoting Barland v. Eau Claire 

Cty., 216 Wis. 2d 560, 573, 575 N.W.2d 691 (1998)). "The coordinate branches of the government . . . should not abdicate or 

permit others to infringe upon such powers as are exclusively 

committed to them by the Constitution." Rules of Court Case, 

204 Wis. 501, 514, 236 N.W. 717 (1931). Transferring to 

administrative agencies the core legislative duty of making laws 

abnegates powers the people gave their elected representatives. 

The consolidation of power within executive branch agencies 
No. 2017AP2278-OA.rgb 

4 

"often leaves Americans at the[ir] mercy" endowing agencies with 

"a nearly freestanding coercive power" and "[t]he agencies 

thereby become rulers of a sort unfamiliar in a republic, and 

the people must jump at their commands." Phillip Hamburger, Is 

Administrative Law Unlawful? 335 (2014). 

¶46 More recently, "necessity" as a justification for the 

administrative state has been tied to the philosophy of a living 

constitution, under which the law may be molded to reflect 

changing circumstances in society, regardless of what the text 

actually says. Hamburger, supra ¶4, at 429. Living 

constitutionalism is grounded in sociology, not the law,3 and is 

inconsistent with the founding principle that "[t]o adapt the 

law to changing circumstances . . . the collective wisdom of the 

people's representatives is needed." Gutierrez-Brizuela v. 

Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J., 

concurring). Those to whom the people have conferred 

constitutional powers may not circumvent those grants simply 

"because they believe that more or different power is 

necessary." A.L.A. Schechter Poultry Corp. v. United States, 

295 U.S. 495, 529 (1935). Necessity "cannot be allowed to 

obscure the limitations of the authority to delegate, if our 

constitutional system is to be maintained." Id. at 530. Even 

"[e]xtraordinary conditions do not create or enlarge 

constitutional power." Id. at 528. 

 

3 Phillip Hamburger, Is Administrative Law Unlawful? 429 

(2014). 
No. 2017AP2278-OA.rgb 

5 

¶47 The United States and Wisconsin Constitutions both 

vest exclusive powers in each of three independent branches of 

government, not four. "The Constitution does not vest the 

Federal Government with an undifferentiated 'governmental 

power,'" but rather, it "identifies three types of governmental 

power and, in the Vesting Clauses, commits them to three 

branches of Government." Association of Am. R.Rs., 135 S. Ct. 

at 1240 (Thomas, J., concurring). Like the federal system, the 

Wisconsin Constitution establishes three branches of government, 

and "[t]he separation of powers doctrine is implicit in this 

tripartite division." Gabler, 376 Wis. 2d 147, ¶11 (quoting 

Panzer v. Doyle, 2004 WI 52, ¶48, 271 Wis. 2d 295, 680 

N.W.2d 666; alteration in original). Article IV, Section 1 

"vest[s]" the "legislative power . . . in a senate and 

assembly"; Article V, Section 1 "vest[s]" the "executive 

power . . . in a governor"; and Article VII, Section 2 "vest[s]" 

the "judicial power of this state . . . in a unified court 

system." See Gabler, 376 Wis. 2d 147, ¶11. These 

constitutional "grants are exclusive," which has been understood 

to mean "only the vested recipient of that power can perform 

it." Association of Am. R.Rs., 135 S. Ct. at 1241 (Thomas, J., 

concurring). 

¶48 "The people bestowed much power on the legislature, 

comprised of their representatives whom the people elect to make 

the laws." Gabler, 376 Wis. 2d 147, ¶60. "The separation of 

powers 'operates in a general way to confine legislative powers 

to the legislature.'" League of Women Voters of Wis. v. Evers, 
No. 2017AP2278-OA.rgb 

6 

2019 WI __, ¶35, __ Wis. 2d __, __ N.W.2d __ (quoting Goodland 

v. Zimmerman, 243 Wis. 459, 467, 10 N.W.2d 180 (1943)). 

Applying an originalist interpretation of the Constitution, some 

United States Supreme Court justices and several commentators 

have opined against the legislature relinquishing its vested 

legislative power "or otherwise reallocat[ing] it," echoing the 

historical understanding that "[t]he legislative c[ould not] 

transfer the power of making laws to any other hands: for it 

being but a delegated power from the people, they who have it 

[could not] pass it over to others." Association of Am. R.Rs., 

135 S. Ct. at 1243-44 (Thomas, J., concurring) (quoting John 

Locke, Second Treatise of Civil Government § 141, 71 (J. Gough 

ed. 1947) (emphasis added; alterations in original). See also 

Richard A. Epstein, Why the Modern Administrative State Is 

Inconsistent with the Rule of Law, 3 N.Y.U.J. of Law & Liberty 

491, 496 (2008) (the argument "that the Constitution authorizes 

the creation of independent agencies with aggregated powers of a 

legislative, executive, and judicial nature . . . fails so long 

as it depends on any form of originalism" and "the text itself 

points to a system whereby the tripartite division is meant to 

be rigid in law"); Hamburger, supra ¶4, at 336 ("[T]he 

government can bind Americans only through laws, and only 

through courts with juries and judges, thus preserving the most 

basic conditions of freedom.") 

¶49 Although a revival of the non-delegation doctrine has 

not garnered the votes of a majority on the Court, this was not 

always the case. In the past, the Court recognized "[t]he 
No. 2017AP2278-OA.rgb 

7 

Congress is not permitted to abdicate or to transfer to others 

the essential legislative functions with which it is thus 

vested." A.L.A. Schechter Poultry Corp, 295 U.S. at 529. 

Despite acknowledging that the constitutional "text permits no 

delegation of those [legislative] powers" the Court has afforded 

much leeway for the legislature to transfer its constitutional 

powers to executive branch agencies, provided that "when 

Congress confers decisionmaking authority upon agencies Congress 

must 'lay down by legislative act an intelligible principle to 

which the person or body authorized to [act] is directed to 

conform.'" Whitman v. American Trucking Ass'ns, Inc., 531 U.S. 

457, 472 (2001) (alteration in original). However, "the 

Constitution does not speak of 'intelligible principles.' 

Rather, it speaks in much simpler terms: 'All legislative 

Powers herein granted shall be vested in a Congress.'" Id. at 

487 (Thomas, J., concurring). 

¶50 Reallocating the making of rules, voluminous in number 

and significant in substance, from the legislature to 

administrative agencies housed within the executive branch, 

aggrandizes the power of the latter, at the risk of replacing 

the rule of law with the rule of men: 

The idea that the Executive may not formulate 

generally applicable rules of private 

conduct . . . has ancient roots in the concept of the 

'rule of law,' which has been understood . . . to mean 

that a ruler must be subject to the law in exercising 

his power and may not govern by will alone. 

Association of Am. R.Rs., 135 S. Ct. at 1242 (Thomas, J., 

concurring) (quoted source omitted). The concept of the rule of 
No. 2017AP2278-OA.rgb 

8 

law "presupposes at least two distinct operations, the making of 

law, and putting it into effect." Id. (quoted source omitted; 

emphasis added). Delegating legislative functions to 

administrative agencies transforms the executive from the 

executor of laws into the lawmaker. Blackstone——whose 

separation of powers principles "profoundly influenced" the 

Founders——"defined a tyrannical government as one in which 'the 

right both of making and of enforcing the laws, is vested in one 

and the same man, or one and the same body of men,' for 

'wherever these two powers are united together, there can be no 

public liberty.'" Id. at 1244 (quoted source omitted). 

¶51 The Founders recognized that maintaining the formal 

separation of powers was essential to preserving individual 

liberty. 

This devotion to the separation of powers is, in 

part, what supports our enduring conviction that the 

Vesting Clauses are exclusive and that the branch in 

which a power is vested may not give it up or 

otherwise reallocate it. The Framers were concerned 

not just with the starting allocation, but with the 

"gradual concentration of the several powers in the 

same department." The Federalist No. 51, at 321 (J. 

Madison). 

Id.. "Under the original understanding of the Constitution," 

the function of creating "generally applicable rules of private 

conduct . . . requires the exercise of legislative power," and 

"the discretion inherent in executive power does not comprehend 

the discretion to formulate generally applicable rules of 

private conduct." Id. at 1242. The judiciary, however, has 

blurred the lines distinguishing legislative power from 

executive power, classifying rulemaking as executive in nature 
No. 2017AP2278-OA.rgb 

9 

rather than the core legislative function it was formerly 

recognized to be. See id. at 1246. 

¶52 The Wisconsin Constitution replicates the "separation 

of powers principles[] established at the founding of our nation 

and enshrined in the structure of the United States 

Constitution." See Gabler, 376 Wis. 2d 147, ¶11. "'Each branch 

has exclusive core constitutional powers into which other 

branches may not intrude.'" Id., ¶30 (quoting State v. Horn, 

226 Wis. 2d 637, 643, 594 N.W.2d 772 (1999)). These zones "are 

to be jealously guarded by each branch of government." Gabler, 

376 Wis. 2d 147, ¶31 (quoting Barland, 216 Wis. 2d at 573) 

(internal marks omitted). 

¶53 The concept of the administrative state is nonexistent 

in either the United States or Wisconsin Constitutions, which 

means "administrative power runs outside the law." Hamburger, 

supra ¶4, at 6. 

We have too long abrogated our duty to enforce the 

separation of powers required by our Constitution. We 

have overseen and sanctioned the growth of an 

administrative system that concentrates the power to 

make laws and the power to enforce them in the hands 

of a vast and unaccountable administrative apparatus 

that finds no comfortable home in our constitutional 

structure. The end result may be trains that run on 

time (although I doubt it), but the cost is to our 

Constitution and the individual liberty it protects. 

Association of Am. R.Rs., 135 S. Ct. at 1254-55 (Thomas, J., 

concurring). In facilitating the vast expansion of the 

administrative state, the legislative and executive branches 

transferred power from the people's elected representatives and 

elected executives, bestowing it upon unelected and 
No. 2017AP2278-OA.rgb 

10 

unaccountable bureaucrats, thereby jeopardizing the 

constitution's safeguards against the tyrannical concentration 

of power. "The administrative regime consolidates in one branch 

of government the powers that the Constitution allocates to 

different branches" resulting in "the exercise of power outside 

and above the law." Hamburger, supra ¶4, at 6. 

To the Framers of the United States Constitution, 

the concentration of governmental power presented an 

extraordinary threat to individual liberty: "The 

accumulation of all powers, legislative, executive, 

and judiciary, in the same hands, whether of one, a 

few, or many, . . . may justly be pronounced the very 

definition of tyranny." The Federalist No. 47, at 298 

(James Madison) (Clinton Rossiter ed., 1961). 

Gabler, 376 Wis. 2d 147, ¶4 (ellipsis by Gabler). 

¶54 In Tetra Tech EC, Inc. v. Wisconsin Department of 

Revenue, 2018 WI 75, 382 Wis. 2d 496, 914 N.W.2d 21, we "end[ed] 

our practice of deferring to administrative agencies' 

conclusions of law," thereby reclaiming the judiciary's 

constitutionally-vested authority to say what the law is. Id., 

¶3 (Kelly, J., lead opinion).4 Rather than placidly accepting 

the administrative state as a necessary appendage to the 

government, this court should reconsider its acquiescence to 

 

4 The legislature codified this principle in Wis. Stat. 

§ 227.57 (11) ("Upon review of an agency action or decision, the 

court shall accord no deference to the agency's interpretation 

of law."). 
No. 2017AP2278-OA.rgb 

11 

subdelegations5 of legislative power to administrative agencies 

within the executive branch when the appropriate case presents 

the opportunity. It "is the obligation of the Judiciary not 

only to confine itself to its proper role, but to ensure that 

the other branches do so as well." City of Arlington v. F.C.C., 

569 U.S. 290, 327 (2013) (Roberts, C.J., dissenting). In this 

case, however, none of the parties raise the issue of whether 

"our delegation jurisprudence has strayed too far from our 

Founders' understanding of separation of powers." Whitman, 531 

U.S. at 487 (Thomas, J., concurring). 

¶55 Passing legislation sometimes requires political 

courage. Legislative initiatives may move slowly and some bills 

never become laws. Consequently, "Congress often prefers to set 

a politically uncontroversial goal and leave it to the agencies 

to figure out the politically controversial means of achieving 

that goal." Charles J. Cooper, Confronting the Administrative 

State, 25 National Affairs 96, 103 (Fall 2015). Returning all 

lawmaking responsibilities to the legislature would remove the 

shroud over administrative rulemaking, placing the lawmaking 

process back in the public eye where it constitutionally 

belongs. 

 

5 Because the people delegate power through constitutional 

grants, "when Congress purports to give its legislative power to 

the executive, the question is not whether the principal can 

delegate the power, but whether the agent can subdelegate it." 

Hamburger, supra ¶5 note 2, at 377. "[T]he agent ordinarily 

cannot subdelegate the power to a sub-agent, as this runs 

counter to the apparent intent of the principal." Id. at 380. 
No. 2017AP2278-OA.rgb 

12 

¶56 The objective of our Founders was not an "efficiently 

functioning government."6 The Founders designed a Constitution 

to safeguard individual rights and liberty. The Wilsonian 

vision of rule by enlightened bureaucrats diminishes the power 

of the people, in derogation of the principles on which America 

was founded. "The vesting of legislative power in a distinct 

political body is a stumbling block to modern intellectuals and 

a stone rejected by the builders of the federal bureaucracy, but 

it has been and remains a cornerstone in the constitutional 

architecture of free government." Texas v. United States, 300 

F. Supp. 3d 810, 841 (N.D. Tex. 2018). "Admittedly, the 

legislative process can be an arduous one. But that's no bug in 

the constitutional design: it is the very point of the design." 

Gutierrez-Brizuela, 834 F.3d at 1151 (Gorsuch, J., concurring). 

By separating the lawmaking and law enforcement 

functions, the framers sought to thwart the ability of 

an individual or group to exercise arbitrary or 

absolute power. And by restricting lawmaking to one 

branch and forcing any legislation to endure 

bicameralism and presentment, the framers sought to 

make the task of lawmaking more arduous still. 

United States v. Nichols, 784 F.3d 666, 670 (10th Cir. 2015) 

(Gorsuch, J., dissenting). The "inefficiency" inherent in the 

legislative process "'serves a valuable' liberty-preserving 

'function.'" Id. (quoted source omitted). "While the 

separation of powers may prevent us from righting every wrong, 

it does so in order to ensure that we do not lose liberty." 

 

6 Majority op., ¶17. 
No. 2017AP2278-OA.rgb 

13 

Morrison v. Olson, 487 U.S. 654, 710 (1988) (Scalia, J., 

dissenting). 

¶57 "The Framers could hardly have envisioned . . . the 

authority administrative agencies now hold over our economic, 

social, and political activities." City of Arlington, 569 U.S. 

at 313 (Roberts, C.J., dissenting). Rather than extolling the 

necessity of the administrative behemoth in Wisconsin, this 

court should "glance at the Constitution to see what it says 

about how [governmental] authority must be exercised and by 

whom." See Association of Am. R.Rs., 135 S. Ct. at 1240 

(Thomas, J., concurring). Through the Wisconsin Constitution, 

the people conferred exclusive powers on an elected executive, 

an elected legislature, and an elected judiciary, respectively. 

Noticeably absent from the Wisconsin Constitution is any 

apportionment of power to unelected and unaccountable 

administrators. Because the majority lends unquestioned 

credence to the extra-constitutional apparatus of the 

administrative state, I respectfully concur. 
No. 2017AP2278-OA.dk 

1 

¶58 DANIEL KELLY, J. (concurring). I join the majority 

opinion except with respect to ¶17. 
No. 2017AP2278-OA.awb 

1 

¶59 ANN WALSH BRADLEY, J. (dissenting). A mere three 

years ago, this court decided the very issue that it is 

reconsidering today. In Coyne v. Walker, a majority of the 

court determined that 2011 Act 21 (Act 21) is "unconstitutional 

and therefore void as applied to the Superintendent of Public 

Instruction and his subordinates." 2016 WI 38, ¶4, 368 

Wis. 2d 444, 879 N.W.2d 520. 

¶60 Yet despite this clear mandate, here we are again. A 

provision that does the very same thing as Act 21 is back before 

the court. It comes to us through a new enactment (2017 Wis. 

Act 57) and with a catchy new name (the REINS Act), but the 

substance is identical.1

¶61 And why are we here again? At oral argument, counsel 

for the petitioners was asked, "you wouldn't be here asking a 

supreme court of the state of Wisconsin to overturn a decision 

that it just made two years ago if it were the same court, would 

you?" In response, counsel acknowledged, "any lawyer has to 

make strategic decisions about what is likely to be successful." 

Indeed. 

¶62 Although nothing in our Constitution has changed since 

Coyne was decided, what has changed is the membership of the 

court. This time around, a new majority of this court does an 

about-face and now concludes that the substance of Act 57 is 

 

1 See majority op., ¶7 ("The REINS Act did not alter Act 

21's requirement that an agency (1) submit a statement of scope 

to the governor for approval prior to drafting a proposed rule, 

and (2) submit a final draft of a rule to the governor for 

approval before submitting it to the legislature."). 
No. 2017AP2278-OA.awb 

2 

constitutional. To reach this conclusion, it throws the 

doctrine of stare decisis out the window.2 

¶63 Not only is the majority opinion doctrinally 

erroneous, it is also analytically unpersuasive. As Justice 

Abrahamson wrote in Coyne: "rulemaking is part of the 

'supervision of public instruction,' which Article X, Section 1 

vests in the superintendent."3 368 Wis. 2d 444, ¶85 (Abrahamson, 

J., concurring). Act 21 is unconstitutional "because it grants 

the governor (and the Secretary of the Department of 

Administration) an unchecked veto power over the 

superintendent's rulemaking powers, thereby making the 

superintendent subordinate to the governor (and the Secretary) 

 

2 "Stare decisis" is fundamental to the rule of law. 

Johnson Controls, Inc. v. Emp'rs Ins. of Wausau, 2003 WI 108, 

¶94, 264 Wis. 2d 60, 665 N.W.2d 257. It refers to the principle 

that requires courts to "stand by things decided." State v. 

Harrell, 199 Wis. 2d 654, 667, 546 N.W.2d 115 (1996) 

(Abrahamson, J., concurring); see Black's Law Dictionary 1626 

(10th ed. 2014) defining "stare decisis" as "[t]he doctrine of 

precedent, under which a court must follow earlier judicial 

decisions when the same points arise again in litigation"). 

3 Article X, Section 1 of the Wisconsin Constitution 

provides: 

The supervision of public instruction shall be vested 

in a state superintendent and such other officers as 

the legislature shall direct; and their 

qualifications, powers, duties and compensation shall 

be prescribed by law. The state superintendent shall 

be chosen by the qualified electors of the state at 

the same time and in the same manner as members of the 

supreme court, and shall hold office for 4 years from 

the succeeding first Monday in July. The term of 

office, time and manner of electing or appointing all 

other officers of supervision of public instruction 

shall be fixed by law. 
No. 2017AP2278-OA.awb 

3 

in the supervision of public instruction." Id. Act 57 suffers 

the same infirmity. 

¶64 Because the majority disregards binding precedent and 

arrives at a result that unconstitutionally transfers the vested 

authority of the Superintendent of Public Instruction to the 

governor, I respectfully dissent. 

I 

¶65 This case arises from a petition for original action 

filed by the Petitioners against the Superintendent of Public 

Instruction (SPI) and the Department of Public Instruction 

(DPI). Majority op., ¶1. The Petitioners seek a declaration 

that the SPI and DPI must comply with 2017 Wis. Act 57's (Act 

57) requirement that they receive the governor's approval prior 

to drafting or promulgating an administrative rule. Id. In 

response, the SPI and DPI argue, consistent with Coyne, 368 

Wis. 2d 444, that such a requirement is an unconstitutional 

usurpation of the SPI's vested constitutional authority. Id. 

¶66 Relegating the discussion of stare decisis to a 

footnote, the majority states that it "consider[ed] whether the 

doctrine of stare decisis should be employed in the case before 

us." Id., ¶8 n.5 (citation omitted). It acknowledges that 

Coyne "addressed some of the same statutory provisions and 

constitutional concerns we examine today . . . ." Id. 

¶67 However, it declines to apply the doctrine of stare 

decisis, reasoning that "stare decisis does not require us to 

retain constitutional interpretations that were objectively 

wrong when made . . . because such interpretations are unsound 
No. 2017AP2278-OA.awb 

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in principle." Id. (citations omitted). Further, it asserts 

that it is not required to follow Coyne because "our mandate in 

Coyne arises from a lead opinion, joined by one justice, a twojustice concurrence, and a one-justice concurrence." Id. 

Unsurprisingly, the majority ultimately grants the petitioners' 

requested relief. Id., ¶2. 

II 

¶68 Neither of the majority's proffered rationales for 

departing from stare decisis is persuasive. Stare decisis is 

fundamental to the rule of law. Johnson Controls, Inc. v. 

Emp'rs Ins. of Wausau, 2003 WI 108, ¶94, 264 Wis. 2d 60, 665 

N.W.2d 257. Indeed, "[t]his court follows the doctrine of stare 

decisis scrupulously because of our abiding respect for the rule 

of law." Id. 

¶69 "Fidelity to precedent ensures that existing law will 

not be abandoned lightly. When existing law is open to revision 

in every case, deciding cases becomes a mere exercise of 

judicial will, with arbitrary and unpredictable results." 

Schultz v. Natwick, 2002 WI 125, ¶37, 257 Wis. 2d 19, 653 

N.W.2d 266 (internal quotation and citations omitted). 

¶70 "No change in the law is justified by a change in the 

membership of the court . . . ." Bartholomew v. Wis. Patients 

Comp. Fund, 2006 WI 91, ¶32, 293 Wis. 2d 38, 717 N.W.2d 216 

(citation omitted). Adherence to precedent fosters confidence 

in the reliability of court decisions, promotes consistent 

development of legal principles, and contributes to the actual 
No. 2017AP2278-OA.awb 

5 

and perceived integrity of the Wisconsin judiciary. See Johnson 

Controls, 264 Wis. 2d 60, ¶95. 

¶71 Throwing caution to the wind, the majority disregards 

the principles that fundamentally underlie our legal system. It 

contends that Coyne was "objectively wrong." Majority op., ¶8 

n.6. Further, it ascribes significance to the fact that the 

majority in Coyne consisted of three separate opinions. Id. 

¶72 Apparently, "objectively wrong" is defined by the 

majority as what it subjectively thinks is wrong. The majority 

provides no explanation for the assertion that Coyne was 

"objectively wrong" other than that it disagrees with it. 

¶73 Additionally, the split nature of the Coyne opinion is 

of no import. The mandate of Coyne was clear despite the 

fractured nature of the opinions. Although the four justices in 

the majority subscribed to differing rationales, they agreed on 

the essential conclusion: "We hold that Act 21 is 

unconstitutional and therefore void as applied to the 
No. 2017AP2278-OA.awb 

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Superintendent of Public Instruction and his subordinates." 

Coyne, 368 Wis. 2d 444, ¶4.4 Full stop. 

¶74 Such a decision creates no uncertainty and fosters no 

confusion. Act 57, at issue here, does not differ in any 

material respect from Act 21. 

¶75 Accordingly, I conclude that the doctrine of stare 

decisis applies here with full force. The rule of law and the 

"actual and perceived integrity of the judicial process" demand 

it. See Johnson Controls, 264 Wis. 2d 60, ¶95. 

III 

¶76 The majority errs further in its substantive analysis 

of the separation of powers issues this case presents. I joined 

Justice Abrahamson's concurrence in Coyne, and I believe that it 

remains the correct analysis here. 

¶77 In Coyne, Justice Abrahamson's concurrence determined 

that 2011 Wis. Act 21, which is in all material respects 

identical to Act 57, "unconstitutionally infringes on the 

'supervision of public instruction' vested in the superintendent 

 

4 See also Coyne v. Walker, 2016 WI 38, ¶80, 368 

Wis. 2d 444, 879 N.W.2d 520 (Abrahamson, J., concurring) ("I 

conclude, as do the lead opinion (which represents the views of 

only Justice Gableman) and Justice Prosser's concurrence, that 

2011 Wis. Act 21, which altered the process of administrative 

rulemaking, is unconstitutional as applied to the Superintendent 

of Public Instruction and the Department of Public 

Instruction."); id., ¶155 (Prosser, J., concurring) (concluding 

that Act 21 is unconstitutional "because it would give a 

governor authority to obstruct the work of an independent 

constitutional officer to such an extent that the officer would 

be unable to discharge the responsibilities that the legislature 

has given him. An absolute veto power over a proposed rule is a 

check without a balance."). 
No. 2017AP2278-OA.awb 

7 

by Article X, Section 1 of the Wisconsin Constitution." Coyne, 

368 Wis. 2d 444, ¶93 (Abrahamson, J., concurring). It reached 

this conclusion because Act 21 "gives 'equal or superior 

authority' [over the supervision of public instruction] 

to . . . '[an]other officer.'" Id., ¶100 (Abrahamson, J., 

concurring) (citing Thompson v. Craney, 199 Wis. 2d 674, 699, 

546 N.W.2d 123 (1996)).5 The same is true of Act 57. 

¶78 Such a conclusion is supported by significant 

constitutional history as has been previously set forth by this 

court in Thompson and Coyne. See Coyne, 368 Wis. 2d 444, ¶98 

(Abrahamson, J., concurring); Thompson, 199 Wis. 2d at 685-98. 

"The debates at the 1846 and 1847–48 Wisconsin constitutional 

conventions show that the drafters of the Wisconsin Constitution 

intended the public schools to be under the supervision of the 

SPI, and that the SPI was to be an elected, not appointed, 

public official." Thompson, 199 Wis. 2d at 685. 

¶79 Delegates to the constitutional conventions echoed two 

consistent themes: "first, that the system of education 

required uniformity[, and] second, that the SPI was to provide 

this uniformity in an active manner by implementing the system 

of education." Id. at 688-89. Accordingly, the framers 

"considered and explicitly rejected a proposal to select a 

superintendent by gubernatorial appointment and a proposal that 

 

5 This court previously determined in Thompson that the 

former powers of the elected SPI cannot constitutionally be 

given to appointed "other officers" at the state level who are 

not subordinate to the SPI. Thompson v. Craney, 199 

Wis. 2d 674, 678, 546 N.W.2d 123 (1996). 
No. 2017AP2278-OA.awb 

8 

would have allowed the legislature to vest 'the supervision of 

public instruction . . . in such officers as shall hereafter be 

created by law.'" Coyne, 368 Wis. 2d 444, ¶98 (Abrahamson, J., 

concurring) (citing Thompson, 199 Wis. 2d at 685-86). "Simply 

put, the framers viewed the superintendent as 'indispensable,' 

'the foundation, the life of progressive education' who 'alone 

c[ould] give uniformity, energy, and efficiency to the system.'" 

Id. (citing Journal of the Convention, reprinted in The 

Convention of 1846, at 568, 570-71 (Milo M. Quaife ed. 1919). 

¶80 Consistent with this history and the determination of 

the Thompson court, the concurrence concluded that "rulemaking 

is a supervisory power of the superintendent and that 2011 Wis. 

Act 21 unconstitutionally gives the governor and the secretary 

of the Department of Administration the unchecked authority to 

block rulemaking by the superintendent." Coyne, 368 

Wis. 2d 444, ¶99 (Abrahamson, J., concurring). Act 57 does 

exactly the same thing. Thus, the analysis presented in Justice 

Abrahamson's concurrence in Coyne is equally applicable to the 

issue in this case. Just as Act 21 was unconstitutional three 

years ago, Act 57 remains unconstitutional today. 

¶81 For the foregoing reasons, I respectfully dissent. 

¶82 I am authorized to state that Justice REBECCA FRANK 

DALLET joins this dissent. 
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