2024 WI 31 

SUPREME COURT OF WISCONSIN

CASE NO.: 2023AP2020-OA

COMPLETE TITLE: Tony Evers Governor of Wisconsin, Department of 

Natural 

Resources, Board of Regents of the University of 

Wisconsin 

System, Department of Safety and Professional 

Services and 

Marriage and Family Therapy Board Professional 

Counseling and Social Work Examining Board,

 Petitioners,

Gathering Waters, Inc.,

 Intervenor-Petitioner,

 v.

Senator Howard Marklein, Representative Mark 

Born in their official capacities as chairs of 

the joint committee on finance, Senator Chris 

Kapenga, Representative Robin Vos in their 

official capacities as chairs of the joint 

committee on employment relations, Senator Steve 

Nass and Representative Adam Neylon in their 

official capacities as co-chairs of the joint 

committee for review of administrative rules,

 Respondents,

Wisconsin Legislature,

 Intervenor-Respondent.

ORIGINAL ACTION

OPINION FILED: July 5, 2024 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: April 17, 2024 

SOURCE OF APPEAL:

COURT: 

COUNTY: 

JUDGE: 
2

JUSTICES:

REBECCA GRASSL BRADLEY, J., delivered the majority opinion of 

the Court, in which ANN WALSH BRADLEY, DALLET, HAGEDORN, 

KAROFSKY, and PROTASWIECZ, JJ., joined. ANN WALSH BRADLEY, J., 

filed a concurring opinion, in which DALLET and PROTASWIECZ, 

JJ., joined. REBECCA GRASSL BRADLEY, J., filed a concurring 

opinion. DALLET, J., filed a concurring opinion, in which ANN 

WALSH BRADLEY, KAROFSKY, and PROTASWIECZ, JJ., joined. ZIEGLER, 

C.J., filed a dissenting opinion.

NOT PARTICIPATING:

ATTORNEYS:

For the petitioners, there were briefs filed by Charlotte 

Gibson, assistant attorney general, Colin T. Roth, assistant 

attorney general, with whom on the brief was Joshua L. Kaul, 

attorney general. There was an oral argument by Colin T. Roth, 

assistant attorney general. 

For the intervenor-petitioner, there were briefs filed by 

Erin K. Deeley, Jeffrey A. Mandell, Rachel E. Snyder, Carly Gerads, 

and Stafford Rosenbaum LLP, Madison. There was an oral argument by 

Erin K. Deeley. 

For the respondents and intervenor-respondent, there was a 

brief filed by Misha Tseytlin, Sean T.H. Dutton, Kevin M. LeRoy, 

and Troutman Pepper Hamilton Sanders LLP, Chicago, IL. There was 

an oral argument by Misha Tseytlin. 

An amicus curiae brief was filed by Evan Feinauer, Brett 

Korte, David Tipson, and Clean Wisconsin, Madison, on behalf of 

Clean Wisconsin. 

An amicus curiae brief was filed by Chris Donahoe, Daniel S. 

Lenz, T.R. Edwards, and Law Forward, Inc., Madison, on behalf of 

Former Wisconsin Judges.
3

An amicus curiae brief was filed by Tony Wilkin Gibart, Robert 

D. Lee, and Midwest Environmental Advocates, Madison, on behalf of 

Save our Water and Wisconsin Conservation Voters.

An amicus curiae brief was filed by Bryna Godar, Miriam 

Seifter, and State Democracy Research Initiative, University of 

Wisconsin Law School, Madison, on behalf of Legal Scholars. 

An amicus curiae brief was filed by Richard M. Esenberg, Lucas 

T. Vebber, Skylar Croy, and Wisconsin Institute for Law & Liberty, 

Inc., Milwaukee, on behalf of Wisconsin Institute for Law & 

Liberty, Inc. 
4

2024 WI 31

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2023AP2020-OA

STATE OF WISCONSIN : IN SUPREME COURT

Tony Evers Governor of Wisconsin, Department of 

Natural Resources, Board of Regents of the 

University of Wisconsin System, Department of 

Safety and Professional Services and Marriage 

and Family Therapy Board Professional 

Counseling and Social Work Examining Board,

 Petitioners,

Gathering Waters, Inc.,

 Intervenor-Petitioner,

 v.

Senator Howard Marklein, Representative Mark 

Born in their official capacities as chairs of 

the joint committee on finance, Senator Chris 

Kapenga, Representative Robin Vos in their 

official capacities as chairs of the joint 

committee on employment relations, Senator

Steve Nass and Representative Adam Neylon in 

their official capacities as co-chairs of the 

joint committee for review of administrative 

rules,

 Respondents,

Wisconsin Legislature,

 Intervenor-Respondent.

FILED

JUL 5, 2024

Samuel A. Christensen

Clerk of Supreme Court
5

REBECCA GRASSL BRADLEY, J., delivered the majority opinion of the 

Court, in which ANN WALSH BRADLEY, DALLET, HAGEDORN, KAROFSKY, and 

PROTASWIECZ, JJ., joined. ANN WALSH BRADLEY, J., filed a concurring 

opinion, in which DALLET and PROTASWIECZ, JJ., joined. REBECCA 

GRASSL BRADLEY, J., filed a concurring opinion. DALLET, J., filed 

a concurring opinion, in which ANN WALSH BRADLEY, KAROFSKY, and 

PROTASWIECZ, JJ., joined. ZIEGLER, C.J., filed a dissenting 

opinion.

ORIGINAL ACTION. Rights declared. 

¶1 REBECCA GRASSL BRADLEY, J. The Wisconsin Constitution

vests each of the three branches of government with separate and

distinct powers. When one branch challenges the exercise of power 

by another, the judiciary must ensure constitutional boundaries 

have not been breached. Safeguarding the structural separation of 

powers prevents one branch from encroaching upon or seizing the 

powers of another, averting "'a gradual concentration of the 

several powers in the same department.'" Gabler v. Crime Victims 

Rts. Bd., 2017 WI 67, ¶7, 376 Wis. 2d 147, 897 N.W.2d 384 (quoting 

The Federalist No. 51, at 318-19 (James Madison) (Clinton Rossiter 

ed., 1961)). The "preservation of liberty requires that the three 

great departments of power should be separate and distinct." The 

Federalist No. 47, at 324 (James Madison) (J. Cooke ed., 1961). 

¶2 In this case, the petitioners1 claim the legislature has 

impermissibly intruded upon the executive branch's core power to 

 

1 This original action was brought by the attorney general on 

behalf of Governor Tony Evers, the Department of Natural Resources 
No. 2023AP2020-OA 

6

execute the law by authorizing a legislative committee to halt

expenditures for land conservation measures after the legislature

already appropriated the money through the budget process. The 

legislative respondents2 defend the statutes based on the 

legislature's interest in overseeing the executive branch's 

expenditure of state funds. We hold that Wis. Stat. §§ 23.0917(6m) 

and 23.0917(8)(g)3. (2021-22)3 unconstitutionally authorize the 

legislative branch to arrogate and impede the executive's core

power to execute the law, violating the separation of powers 

structurally enshrined in our constitution. 

I. BACKGROUND

¶3 In 1989, the legislature created the Knowles-Nelson

Stewardship Program ("the Program") "to acquire land to expand 

nature-based outdoor recreational opportunities and protect 

environmentally sensitive areas." Eric Hepler, Warren KnowlesGaylord Nelson Stewardship Program, Wis. Legis. Fiscal Bureau,

Informational Paper #66, 1 (Jan. 2023); 1989 Wis. Act 31, § 650fq. 

 

("DNR"), the Board of Regents for the University of Wisconsin, the 

Department of Safety and Professional Services, and the Marriage 

and Family Therapy, Professional Counseling, and Social Work 

Examining Board. After we granted the original action petition, 

we granted Gathering Waters, Inc.'s motion to intervene as a 

petitioner. 

2 The legislative respondents are Senators Howard Marklein, 

Chris Kapenga, and Steve Nass, and Representatives Mark Born, Robin 

Vos, and Adam Neylon, each named in his official capacity. After 

we granted the original action petition, we granted the Wisconsin 

Legislature's motion to intervene as a respondent. 

3 All subsequent references to the Wisconsin Statutes are to 

the 2021-22 version unless otherwise indicated.
No. 2023AP2020-OA 

7

The Program allows the Department of Natural Resources ("DNR") to 

purchase land or disburse state funds to local governments and 

nonprofit organizations to acquire land for nature-based outdoor 

recreation. Land acquired under the Program must remain accessible

to the public unless public safety or environmental concerns 

counsel against public access. See generally Wis. Stat. § 23.0916. 

Since its creation, the legislature has reauthorized funding for 

the Program multiple times, primarily through the biennial budget 

process. 2021 Wis. Act 58, § 97m. Currently, the legislature has 

authorized the DNR to obligate up to $33,250,000 in each fiscal 

year through 2025-26 for land acquisition projects. Wis. Stat. 

§ 20.866(2)(ta).

¶4 To carry out the Program, the DNR reviews applications 

submitted by local governments and conservation nonprofits to 

determine whether the requested expenditure fulfills the statutory 

purposes outlined in Wis. Stat. § 23.09(2)(d) for land 

acquisition. The DNR also may purchase land under the Program. 

Wis. Stat. § 23.0917(3)(a). The DNR has promulgated detailed

administrative rules to implement and administer the Program, 

including rules establishing eligibility requirements for proposed 

projects. See generally Wis. Admin. Code NR § 51. Those rules 

provide additional guidance for land acquisition proposals. Wis. 

Admin. Code NR § 1.40.

¶5 In October 2023, the governor filed an original action 

petition with this court raising three separate but related issues 

regarding the exercise of legislative review procedures over 
No. 2023AP2020-OA 

8

executive branch actions.4 We granted review solely with respect 

to the legislative review provisions governing the Program and 

held the other two issues in abeyance pending the resolution of 

this issue. 

¶6 The petitioners challenge the constitutionality of Wis. 

Stat. §§ 23.0917(6m) and (8)(g)3., which allow the Joint Committee 

on Finance ("JFC")5 to engage in a review process for certain 

expenditures under the Program. Specifically, subsection (6m)

requires the DNR6 to notify the members of the JFC if an expenditure 

under the Program exceeds $250,000.7 § 23.0917(6m)(c). The 

statute allows the members of the JFC to review the expenditure 

 

4 Specifically, the petitioners challenged legislative review 

provisions in Wis. Stat. §§ 23.0917(6m) and 23.0917(8)(g)3., Wis. 

Stat. § 230.12(3)(e)1., and Wis. Stat. §§ 227.19(5)(c), (d), (dm), 

and 227.26(2)(d) and (im). 

5 The Joint Committee on Finance has existed in some form 

since 1911. Its principal function is to serve as the legislative 

committee reviewing state funding and appropriations, which are 

generally handled through the biennial budget process. Dave 

Loppnow, Joint Committee on Finance, Wis. Legis. Fiscal Bureau, 

Informational Paper #81, 1 (Jan. 2023). The committee comprises

sixteen legislators, consisting of eight senators and eight 

representatives to the assembly. Wis. Stat. § 13.09(1). The 

Senate Majority Leader and the Speaker of the Assembly select 

committee members.

6 The legislature created the DNR and placed its supervision 

within the executive branch under the "the direction and 

supervision of the natural resources board." Wis. Stat. 

§ 15.34(1).

7 The review process applies to certain expenditures under 

$250,000, but a full recitation of its reach is unnecessary because 

the petitioners facially challenge the legislature's ability to 

reject the disbursement of appropriated funds. 
No. 2023AP2020-OA 

9

over a 14-day period and the JFC can temporarily block the 

expenditure of the funds by the executive branch until the 

committee holds a meeting on the proposed project. If a meeting 

is requested by a member of the JFC, the DNR cannot obligate the 

funds for the project until the committee approves the expenditure. 

Nothing within the statutory review provisions mandates when the 

committee must hold a meeting on the expenditure. After a meeting 

is held, the JFC votes on whether to allow the specific expenditure 

by the DNR. The JFC's decision is not subject to a vote of the 

full legislature.

¶7 Subsection (8)(g)3. operates in the same way as 

subsection (6m) but applies to land acquisition projects "outside 

of a project boundary" regardless of the amount of the expenditure. 

Under this subsection, the DNR cannot obligate money for a land 

acquisition "outside of a project boundary" unless 12 members of 

the JFC "approve the land acquisition." Wis. Stat. 

§ 23.0917(8)(g)3. The full legislature does not review or vote on

the JFC's decision. If the JFC rejects the expenditure, the money 

cannot be spent on the project. The petitioners allege the JFC 

has prohibited or delayed a number of the DNR's proposed Program 

expenditures, thereby affecting the executive branch's ability to 

effectuate the policy purposes of the Program. 

II. STANDARD OF REVIEW 

¶8 The petitioners assert the statutes permitting the JFC 

to review certain expenditures under the Program are facially 

unconstitutional because they violate the separation of powers 

embedded in the Wisconsin Constitution's vesting clauses. In 
No. 2023AP2020-OA 

10

making a facial challenge, petitioners "face a tall task." Serv.

Emps. Int'l Union, Loc. 1 v. Vos, 2020 WI 67, ¶4, 393 Wis. 2d 38, 

946 N.W.2d 35 ("SEIU"). "[T]he challenging party must show that 

the statute cannot be enforced 'under any circumstances.'" Id., 

¶38 (quoted source omitted). The facial challenge to the statutes 

in this case presents issues of constitutional and statutory 

interpretation, which are questions of law this court reviews de 

novo. League of Women Voters of Wis. v. Evers, 2019 WI 75, ¶13, 

387 Wis. 2d 511, 929 N.W.2d 209 (citing Milwaukee J. Sentinel v. 

DOA, 2009 WI 79, ¶14, 319 Wis. 2d 439, 768 N.W.2d 700). 

III. ANALYSIS

¶9 Mirroring the United States Constitution,8 the 

Wisconsin Constitution "creates three separate coordinate branches 

of government," with the understanding that no branch of government 

can subordinate, control, or exercise the power of another branch.

State v. Holmes, 106 Wis. 2d 31, 42, 315 N.W.2d 703 (1981). Each 

branch is "'vested' with a specific core governmental power." 

SEIU, 393 Wis. 2d 38, ¶31 (citing Gabler, 376 Wis. 2d 147, ¶11). 

"The legislative power shall be vested in a senate and assembly"; 

"The executive power shall be vested in a governor"; and "The 

 

8 As a general principle, the separation of powers framework 

undergirding the Wisconsin Constitution reflects the principles 

embodied in the United States Constitution. Gabler v. Crime 

Victims Rts. Bd., 2017 WI 67, ¶11, 376 Wis. 2d 147, 897 N.W.2d 

384; Serv. Emps. Int'l Union, Loc. 1 v. Vos, 2020 WI 67, ¶31, 393 

Wis. 2d 38, 946 N.W.2d 35 ("SEIU"). We may consult federal sources 

on the separation of powers because they "inform our understanding 

of the separation of powers under the Wisconsin Constitution." 

Gabler, 376 Wis. 2d 147, ¶11. 
No. 2023AP2020-OA 

11

judicial power of this state shall be vested in a unified court 

system." Wis. Const. art. IV, § 1; id. art. V, § 1; id. art. VII, 

§ 2. Under the dispersion of these powers between the branches,

"[e]very positive delegation of power to one officer or department 

implies a negation of its exercise by any other officer, department 

or person. If it did not, the whole constitutional fabric might 

be undermined and destroyed." State v. Hastings, 10 Wis. 468 

[*525], 475 [*531] (1860). "By vesting certain powers exclusively 

within each of the three co-equal branches of government, the 

drafters of the Wisconsin Constitution recognized the importance 

of dispersing governmental power in order to protect individual 

liberty and avoid tyranny." League of Women Voters, 387 Wis. 2d 

511, ¶31 (citation omitted).

¶10 Historically, we have recognized "core powers" of each 

branch and "shared powers" between the branches. SEIU, 393 

Wis. 2d 38, ¶35. "Core powers," we have said, "are not for 

sharing." Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶47, 382 

Wis. 2d 496, 914 N.W.2d 21 (lead opinion). "There are zones of 

authority constitutionally established for each branch of 

government upon which any other branch of government is prohibited 

from intruding. As to these areas of authority, the unreasonable 

burden or substantial interference test does not apply: any

exercise of authority by another branch of government is 

unconstitutional." State ex rel. Fiedler v. Wis. Senate, 155 Wis. 

2d 94, 100, 454 N.W.2d 770 (1990) (citing In Matter of Complaint 

Against Grady, 118 Wis. 2d 762, 776, 348 N.W.2d 559 (1984)). 
No. 2023AP2020-OA 

12

¶11 In contrast, shared powers "lie at the intersections of 

the[] exclusive core constitutional powers." Gabler, 376 

Wis. 2d 147, ¶34 (quoting State v. Horn, 226 Wis. 2d 637, 643, 594 

N.W.2d 772 (1999)). Incapable of precise classification, shared 

powers have been described as "twilight zones" and "ambiguous 

territory in which the functions of two branches . . . overlap." 

Holmes, 106 Wis. 2d at 43-44. For example, we have "acknowledged 

that some legislative actions affecting the courts do not 

contravene the separation of powers." Gabler, 376 Wis. 2d 147, 

¶35. Identifying the core powers of the legislature and the 

executive branch facilitates our review of the challenged statutes 

under a separation of powers analysis. 

¶12 Article IV, Section 1 of the Wisconsin Constitution 

vests the "senate and assembly" with the "legislative power" which 

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

Koschkee v. Taylor, 2019 WI 76, ¶11, 387 Wis. 2d 552, 929 

N.W.2d 600 (quoting Schuette v. Van De Hey, 205 Wis. 2d 475, 480-

81, 556 N.W.2d 127 (Ct. App. 1996)). The legislative power 

encompasses the ability to determine whether there shall be a law, 

to what extent the law seeks to accomplish a certain goal, and any

limitations on the execution of the law. Id.; see also State ex 

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

N.W. 929 (1928); SEIU, 393 Wis. 2d 38, ¶1 ("Legislative power is 

the power to make the law, to decide what the law should be.").

The legislative power is vast: "it is competent for the 

legislature to exercise all legislative power not forbidden by the 

constitution or delegated to the general government, or prohibited 
No. 2023AP2020-OA 

13

by the constitution of the United States. The legislature, subject 

to a qualified veto of the executive, possesses all the legislative 

power of the state." Bushnell v. Town of Beloit, 10 Wis. 155 

[*195], 168-69 [*225] (1860).

¶13 The procedural requirements of bicameralism and 

presentment temper the expansive authority vested in the 

legislative branch to make policy decisions for the state. For a 

bill to be enacted into law it must pass through both the assembly 

and the senate and then be presented to the governor for his 

approval or veto. Wis. Const. art. V, § 10(1)(a) ("Every bill 

which shall have passed the legislature shall, before it becomes 

a law, be presented to the governor."). "A prime reason for 

bicameralism, modernly considered, is to insure mature and 

deliberate consideration of, and to prevent precipitate action on, 

proposed legislative measures." Reynolds v. Sims, 377 U.S. 533, 

576 (1964). Bicameralism and presentment thereby cabin the immense 

power vested in the legislature to enact laws. See Consumer Energy 

Council of Am. v. FERC, 673 F.2d 425, 464 (D.C. Cir. 1982)

(bicameralism and presentment "ultimately serve the same 

fundamental purpose: to restrict the operation of the legislative 

power to those policies which meet the approval of three 

constituencies, or a supermajority of two.").

¶14 Determinations of how to appropriate the state's funds

fall squarely within the legislative power. The legislature 

derives its spending power from Article VIII, Section 2 of the 

Wisconsin Constitution: "No money shall be paid out of the 

treasury except in pursuance of an appropriation by law." This 
No. 2023AP2020-OA 

14

provision, combined with Article VIII, Section 5,9 "empower[s] the 

legislature . . . to make policy decisions regarding taxing and 

spending." Flynn v. DOA, 216 Wis. 2d 521, 540, 576 N.W.2d 245 

(1998). Controlling the expenditure of state funds through 

lawmaking constitutes an exercise of the legislature's 

appropriation authority. See id. at 547; SEIU, 393 Wis. 2d 38, 

¶69 ("[T]he constitution gives the legislature the general power 

to spend the state's money by enacting laws."). 

¶15 Article V, Section 1 of the Wisconsin Constitution vests 

the governor with the "executive power." The governor is entrusted 

to "take care that the laws be faithfully executed." Wis. Const. 

art. V, § 4. The executive branch's role is to effectuate the 

policies passed by the legislature. The "executive, however, is 

not a legislatively-controlled automaton. Before executing, he 

must of necessity determine for himself what the law requires him 

to do." SEIU, 393 Wis. 2d 38, ¶96 (Kelly, J., majority op.).10 

The executive power vested in the governor comprises the ability 

to determine "what the law requires as well as applying it[.]" 

 

9 Wis. Const. art. VIII, § 5 ("The legislature shall provide 

for an annual tax sufficient to defray the estimated expenses of 

the state for each year; and whenever the expenses of any year 

shall exceed the income, the legislature shall provide for levying 

a tax for the ensuing year, sufficient, with other sources of 

income, to pay the deficiency as well as the estimated expenses of 

such ensuing year.") 

10 In SEIU, there were two majority opinions. Justice 

Hagedorn authored one majority opinion joined by Chief Justice 

Roggensack and Justices Annette Ziegler, Rebecca Grassl Bradley, 

and Daniel Kelly. See SEIU, 393 Wis. 2d 38, ¶6. Justice Kelly 

authored a separate majority opinion joined by Justices Ann Walsh 

Bradley, Rebecca Grassl Bradley, and Rebecca Frank Dallet. 
No. 2023AP2020-OA 

15

Id., ¶99. An early case of the Wisconsin Supreme Court expounded 

the powers of the executive branch: "whatever power or duty is 

expressly given to, or imposed upon the executive department, is 

altogether free from the interference of the other branches of the 

government. Especially is this the case, where the subject is 

committed to the discretion of the chief executive officer, either 

by the constitution or by the laws. So long as the power is vested 

in him, it is to be by him exercised, and no other branch of the 

government can control its exercise." Att'y Gen. ex rel. Taylor 

v. Brown, 1 Wis. 422 [513*], 449 [522*] (1853). 

¶16 In executing the law, the executive branch must make 

decisions about how to enforce and effectuate the laws. The text 

of the statutes enacted by the legislature limits the exercise of 

executive discretion. Fabick v. Evers, 2021 WI 28, ¶14, 396 

Wis. 2d 231, 956 N.W.2d 856 ("[I]f the governor has authority to 

exercise certain expanded powers not provided in our constitution, 

it must be because the legislature has enacted a law that passes 

constitutional muster and gives the governor that authority."). 

Put simply, "the legislature's authority comprises the power to 

make the law, whereas the executive's authority consists of 

executing the law. The distinction between the two has been 

described as the difference between the power to prescribe and the 

power to put something into effect[.]" SEIU, 393 Wis. 2d 38, ¶95. 

Neither the legislature nor the executive "ought to possess 

directly or indirectly, an overruling influence over the other[] 

in the administration of their respective powers." The Federalist 

No. 48, supra, at 332 (James Madison).
No. 2023AP2020-OA 

16

¶17 Wisconsin Stat. §§ 23.0917(6m) and 23.0917(8)(g)3.

establish a legislative review process requiring the DNR to notify 

the JFC if it intends to obligate state funds for certain land 

acquisition projects. The statutes allow the JFC to indefinitely 

delay an expenditure if one of its members requests a meeting on 

the proposed expenditure. The petitioners contend this procedure 

unlawfully intrudes upon the governor's core powers to "take care 

that the laws be faithfully executed." Wis. Const. art. V, § 4. 

The legislative respondents urge this court to instead classify 

the statutory scheme as falling within the shared powers of the 

executive and legislative branches because the DNR is an 

administrative agency created by the legislature and subject to 

legislative oversight. The respondents additionally argue that 

spending appropriated funds is a shared power because Article VIII, 

§ 2 of the Wisconsin Constitution gives the legislature the power 

to appropriate funds. 

¶18 The constitutional text belies this argument. "No money 

shall be paid out of the treasury except in pursuance of an 

appropriation by law." Wis. Const. art. VIII, § 2 (Emphasis 

added.). While the constitution gives the legislature the power 

to appropriate funds, the power to spend the funds the legislature 

has appropriated for a specific project belongs to the executive 

branch. This is true even though the legislature created the DNR. 

While the legislature has the power create an agency, define its 

powers, and appropriate funds to fulfill the purpose for which the 

legislature established it, the power to spend appropriated funds 

in accordance with the law enacted by the legislature lies solely 
No. 2023AP2020-OA 

17

within the core power of the executive to ensure the laws are 

faithfully executed.

¶19 We conclude these statutes interfere with the executive 

branch's core function to carry out the law by permitting a 

legislative committee, rather than an executive branch agency, to 

make spending decisions for which the legislature has already 

appropriated funds and defined the parameters by which those funds 

may be spent. A statute authorizing the legislative branch to 

exercise core powers of the executive branch violates the 

constitutional separation of powers and cannot be enforced under 

any circumstances. The legislative review provisions governing 

expenditures under the Program in Wis. Stat. §§ 23.0917(6m) and 

23.0917(8)(g)3. are unconstitutional. 

¶20 Although the legislature retains the authority to 

conduct oversight investigations11 and audits of administrative 

agencies,12 empowering a legislative committee to block the 

expenditure of appropriated funds exceeds the legislative power 

and intrudes upon the executive branch's authority to execute the 

law. Once the legislature appropriates funds for a particular 

purpose, the executive branch possesses the power to dole out those 

 

11 State v. Frear, 138 Wis. 173, 119 N.W.2d 894, 895 (1909) 

(holding "[t]he Legislature has very broad discretionary power to 

investigate any subject respecting which it may desire information 

in aid of the proper discharge of its function to make or unmake 

written laws").

12 See Wis. Const. art. IV, § 33 (giving the legislature the 

authority to audit "state accounts"); Wis. Stat. § 13.53 

(establishing a joint legislative audit committee).
No. 2023AP2020-OA 

18

funds in accordance with the purposes outlined by the legislature. 

See Frank H. Easterbrook, "Success" and the Judicial Power, 65 

Ind. L.J. 277, 281 (1990) ("[H]anding out public money is a 

classically executive function."). While the legislature's 

motivation for overseeing the public fisc may be well-intentioned, 

fundamentally, the legislature may not execute the law; the people 

gave the executive alone this power. Maintaining a strict 

separation between the branches is essential to the preservation 

of liberty because "a government with shared legislative and 

executive power could first 'enact tyrannical laws' then 'execute 

them in a tyrannical manner.'" Gabler, 376 Wis. 2d 147, ¶5 

(quoting 1 Montesquieu, The Spirit of the Laws 151-52 (Oskar Piest 

et al. eds., Thomas Nugent trans., 1949) (1748)). To prevent this 

dangerous concentration of power, the constitution prohibits "'the 

same persons who have the power of making laws to have also in 

their hands the power to execute them.'" Id. (quoting John Locke, 

The Second Treatise of Civil Government § 143 (1764), reprinted in

Two Treatises of Government 119, 194 (Thomas I. Cook ed., 1947)). 

¶21 When the executive branch acts under a grant of 

authority from the legislature, its authority "is at its maximum." 

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) 

(Jackson, J., concurring). The decision of the DNR to distribute 

funds for a specific project or land acquisition is an exercise of 

executive power because the legislature conferred that authority 

on the executive when it established and reauthorized the program.

The legislature retains the authority to "withdraw powers which 

have been granted, prescribe the procedure through which granted 
No. 2023AP2020-OA 

19

powers are to be exercised, and, if necessary, wipe out the agency 

entirely." Whitman, 196 Wis. at 508. The legislature could take 

away or limit the discretion of the executive branch to make

spending decisions for the Program, but once it has conferred 

spending power on the executive, the legislative branch lacks any

constitutional authority to reject an executive decision short of 

exercising its lawmaking power with the full participation of the 

legislature. 

¶22 In this case, the legislature has prescribed by law the 

parameters of how and where the DNR may expend state funds under 

the Program. For example, Wis. Stat. § 23.0917(3)(c) identifies 

a variety of purposes the DNR should prioritize in obligating funds 

for land acquisition. The statutes authorizing the Program also 

identify both prohibitions and limitations on the types of projects 

eligible for funding. For example, the DNR may not obligate funds 

"for the acquisition of land for golf courses or for the 

development of golf courses." § 23.0917(8)(a). The statutes also 

limit how much money the DNR can obligate for land acquisition 

each fiscal year. § 23.0917(3)(dm). This sort of statutory line 

drawing lies squarely within the legislature's core powers to enact 

laws and make spending decisions for the state. Flynn, 216 

Wis. 2d at 547 ("Several sections of the Wisconsin Constitution 

together provide that the legislature has the power to enact laws 

which appropriate funds."); State ex rel. Friedrich v. Cir. Ct.

for Dane Cnty., 192 Wis. 2d 1, 16, 531 N.W.2d 32 (1995) (per 

curiam) ("The legislature has power to enact legislation for the 

general welfare and to allocate government resources."). However, 
No. 2023AP2020-OA 

20

§§ 23.0917(6m) and 23.0917(8)(g)3. give JFC members the power to 

decide how the funds should be used after the lawmaking process 

has been completed and the funds have been appropriated to the 

DNR——a quintessential executive function.

¶23 Once the legislature passes a bill that is signed by the 

governor and becomes law, "the legislature plays no part in 

enforcing our statutes[.]" Soc'y Ins. v. LIRC, 2010 WI 68, ¶27, 

326 Wis. 2d 444, 786 N.W.2d 385. The constitution assigns the 

execution of the law to the executive branch alone. Wis. Const. 

art. V, § 4. After the legislative process has been completed and 

funds have been appropriated, the legislature cannot insert itself 

into the machinery of the executive branch in an attempt to control

the executive branch's ability to carry out the law. While the 

legislature retains the power to repeal, modify, or alter a law 

through the enactment of a bill, it cannot seize for itself the 

authority to prevent an expenditure of state funds appropriated

under Article VIII, Section 2. See Bowsher v. Synar, 478 U.S. 714, 

734 (1986) (Congress cannot retain "control over the execution" of 

a statute). 

¶24 Wisconsin Stat. §§ 23.0197(6m) and 23.0197(8)(g)3.

effectively create a legislative veto, allowing the JFC to 

interfere with and even override the executive branch's core power 

of executing the law. If the JFC does not object to a proposed 

project within the 14 day review window, the DNR may spend the 

money. But if a single JFC member objects to the DNR's project 

proposal, the JFC will hold a meeting and can either approve the 

proposed funding in full, modify the amount to be disbursed, or 
No. 2023AP2020-OA 

21

outright reject the project. The statutes omit a deadline for the 

JFC to hold a meeting if there is an objection to a proposed 

expenditure. The review process ultimately permits the members of 

the JFC to serve as gatekeeper to the exercise of a core executive 

function. Effectively, JFC members make the spending decision——

not the executive branch. This unfettered interference by the 

committee oversteps the boundaries of legislative authority by

arrogating the executive branch's core power to choose which 

conservation projects best carry out the statutory purposes of the 

Program.

¶25 In defending the JFC's statutory review process, the

legislature did not offer any historical support surrounding the 

state's founding for similar post-enactment legislative review 

processes as a prerequisite for executive branch action. Instead, 

the legislature cites the emergence of complex state governance in 

the 1970s and 1980s as the impetus for legislative committee review 

provisions. Rather than grounding their arguments in our 

constitution's text or our state's history, as reflected in our 

recent separation of powers jurisprudence, the legislative 

respondents primarily rely on the court of appeals decision J.F. 

Ahern Co. v. Wisconsin State Building Commission, 114 Wis. 2d 69, 

336 N.W.2d 679 (Ct. App. 1983), to justify the legislative review 

process created by Wis. Stat. §§ 23.0917(6m) and 23.0917(8)(g)3. 

The respondents argue the opinion is "detailed and well-reasoned" 

and "entitled to full stare decisis respect" from this court. We 

disagree and overrule Ahern to the extent its reasoning conflicts 

with our analysis in this case. We are "not bound by court of 
No. 2023AP2020-OA 

22

appeals decisions" and they may be overruled without any special 

justification. State v. Yakich, 2022 WI 8, ¶31, 400 Wis. 2d 549, 

970 N.W.2d 12; accord Cook v. Cook, 208 Wis. 2d 166, 190, 560 

N.W.2d 246 (1997) (This court "has the power to overrule, modify 

or withdraw language from a published opinion of the court of 

appeals"); State v. Lira, 2021 WI 81, ¶45, 399 Wis. 2d 419, 966 

N.W.2d 605 ("This court has never applied the five factors commonly 

used in a decision to overturn supreme court caselaw to override 

an interpretation derived solely from the court of appeals."); 

State v. Johnson, 2023 WI 39, ¶20, 407 Wis. 2d 195, 990 N.W.2d 174 

("[W]e have never required a special justification to overturn a 

decision of the court of appeals."). 

¶26 In Ahern, the appellants alleged the State Building 

Commission——a legislative committee consisting of three 

assemblymen, three senators, the governor, and a citizen appointee 

of the governor——was authorized to exercise executive power in 

violation of the separation of powers. 114 Wis. 2d at 99-100. At 

issue was the Building Commission's statutory authority to waive 

a competitive bidding law on state construction contracts and its 

right of prior approval over a contract for the construction of 

any building that involved a cost exceeding $15,000. Id. at 104-

05. Although the court of appeals recognized this scheme allowed 

members of the legislature "to exercise executive powers to the 
No. 2023AP2020-OA 

23

exclusion of the executive branch[,]" it nevertheless upheld it.13 

Id. at 107. According to the court, the separation of powers is 

not strictly enforced and instead "liberally applied." Id. at 

102. It employed a "pragmatic approach" to the doctrine, finding 

no violation because the respective powers of the executive and 

legislative branches ostensibly were balanced: "[T]he Wisconsin 

Constitution, subject to the limitation against 'unchecked power,'

permits a blending or sharing of powers among the three branches 

of government." Id. at 103-04. Because the governor could always 

choose not to approve a contract, the court of appeals deemed the 

executive and legislative powers adequately balanced. Id. at 107 

("[I]f the executive branch can check the commission's exercise of 

executive power, no violation of the separation doctrine 

exists."). The court of appeals viewed this "compulsory unanimity" 

between the legislature and executive as a "cooperative venture 

between the two governmental branches." Id. at 108.

¶27 The pragmatic approach applied in Ahern cannot be 

squared with the separation of powers principles embedded in our

state constitution or the rationale underlying them: the dispersal 

of distinct powers among the three branches of government and the 

threats to liberty arising from the concentration of powers in one 

branch. See Gabler, 376 Wis. 2d 147, ¶7; SEIU, 393 Wis. 2d 38, 

¶30; League of Women Voters, 387 Wis. 2d 511, ¶31. Absent the 

 

13 J.F. Ahern Co. v. Wis. State Bldg. Comm'n, 114 Wis. 2d 69, 

105, 336 N.W.2d 679 (Ct. App. 1983) ("Because that right of prior 

approval affects the implementation of established law and policy, 

it is an executive power."). 
No. 2023AP2020-OA 

24

consent of the governed, none of the branches bear any authority 

to reallocate the powers the people constitutionally assigned to 

them. We overrule Ahern to the extent it endorses a restructuring 

of the constitutional separation of powers. Its functionalist 

analysis——which condones the "cooperative" sharing of core powers—

—subverted the constitution's separation of governmental powers. 

¶28 The legislative respondents defend the legislative 

review process based on the "practicalities of modern legislation 

and administrative agencies . . . [which] frequently involve[]

regulatory agencies administering broad legislative programs." 

According to the respondents, review is particularly imperative in 

this case because "the DNR has mismanaged the Knowles-Nelson 

Stewardship Program," including failing to control spending. We 

reject the respondents' pragmatic arguments for sustaining the 

statutes because the legislature has no authority to control

executive branch efforts to carry out the law. The constitution 

does not empower any branch to circumvent the constitutional 

confines of its authority even if it "believe[s] that more or 

different power is necessary." A.L.A. Schechter Poultry Corp. v. 

United States, 295 U.S. 495, 529 (1935). "[I]n the long run the 

improvisation of a constitutional structure on the basis of 

currently perceived utility will be disastrous." Mistretta v. 

United States, 488 U.S. 361, 427 (1989) (Scalia, J., dissenting). 

Upholding the statutes based on pragmatic considerations would 

reallocate the constitutionally prescribed core powers of the 

executive branch and the legislative branch in our state 

constitution. The power to do so belongs to the people alone. 
No. 2023AP2020-OA 

25

"Resolute resistance to intrusions across the constitutionally 

constructed . . . perimeter[s] does not represent a power play by 

one branch vis-à-vis another. 'The purpose of the separation and 

equilibration of powers in general . . . was not merely to assure 

effective government but to preserve individual freedom.'" 

Gabler, 376 Wis. 2d 147, ¶39 (quoting Morrison v. Olson, 487 

U.S. 654, 727 (Scalia, J., dissenting)). 

¶29 Legislative vetoes disrupt the governmental 

accountability the separation of powers facilitates. By 

appropriating a sum of money to the DNR for the Program with only 

broad direction, the legislature avoids the political judgments 

and votes necessary to appropriate funds with greater specificity. 

"[T]he legitimation of the legislative veto will enable 

continuation and expansion of the recent practice of adopting major 

measures by a process which preserves congressional control while 

relieving the people's representatives of the embarrassment of 

voting." Antonin Scalia, The Legislative Veto: A False Remedy for 

System Overload, 3 Regulation: AEI Journal on Government and 

Society, 19, 25 (Nov./Dec. 1979). "If [the legislature] is willing 

to commit a matter to the executive, well and good; but if [the 

legislature] wants to retain control of the matter, and thereby 

admits that it has not completed its legislative function——then it 

must act by voting[.]" Id. The veto provisions undermine 

democratic governance by circumventing the lawmaking process——

which requires the participation of the entire legislature——and 

punting to a committee the controversial and therefore politically 

costly positions legislators would otherwise need to take. 
No. 2023AP2020-OA 

26

¶30 The legislature's concerns about the executive branch's 

unwillingness to faithfully execute the program in accordance with 

legislative policy preferences may be addressed via numerous 

constitutional tools at the legislature's disposal to rein in the 

executive branch. The legislature could lawfully limit the Program 

using its appropriation power to decrease funding for the Program, 

by narrowing the scope of discretion afforded to the executive 

branch through legislation, by enacting sunset provisions14

requiring the Program to be reauthorized by a later legislative 

session, by auditing the executive agency administering the 

Program, or by eliminating the Program altogether. Whitman, 196 

Wis. at 508 ("[A]dministrative agencies are the creatures of the 

legislature and are responsible to it. Consequently the 

legislature may withdraw powers which have been granted, prescribe 

the procedure through which granted powers are to be exercised, 

and if necessary, wipe out the agency entirely."). Additionally, 

the legislature could enact line-item appropriations for specific 

projects.15 

¶31 Our holding does not expand executive power but rather 

preserves the constitutional roles the people assigned to the 

 

14 The legislature in fact included a sunset provision for the 

Program, authorizing current funding levels only through the 2025-

26 fiscal year. Wis. Stat. § 23.0917(3)(dm)(8).

15 When the legislature created the land acquisition and 

conservation program, the statutes identified specific projects 

and areas to be funded through the appropriation (e.g., "Hank Aaron 

State Trail") but also identified general areas on which the funds 

could be spent (e.g., "Wildlife habitat restoration and 

fisheries"). See generally Wis. Stat. § 23.0915 (1991-92).
No. 2023AP2020-OA 

27

executive and legislative branches. We reiterate the 

constitutional boundaries of governmental powers to ensure the 

branches do 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). As 

part of our judicial duty, this court "must be assiduous in 

patrolling the borders between the branches" because the 

separation of powers doctrine "provides structural protection 

against depredations on our liberties." Tetra Tech, 382 Wis. 2d 

496, ¶45. Our decision neither enhances executive power nor 

curtails legislative power. We simply confine the legislature to 

lawmaking and leave the execution of the laws to the executive as 

the Wisconsin Constitution commands. Gabler, 376 Wis. 2d 147, ¶60 

("The significance of preserving clear boundaries between the 

branches has been understood since the founding of our nation"). 

In doing so, we expound the law, which in this case involves 

applying principles embodied in the state constitution since 

ratification. "In the same fashion as the United States 

Constitution, the Wisconsin Constitution preserves the 

independence of each branch vis-à-vis the others and precludes 

each branch from obstructing the performance of another branch's 

constitutional duties." League of Women Voters, 387 Wis. 2d 511, 

¶32 (citing United States v. Klein, 80 U.S. (13 Wall.) 128, 147 

(1872)). 

¶32 James Madison warned of the ambition of the legislative 

branch to grasp at powers beyond its constitutional realm: "The 

legislative department is everywhere extending the sphere of its 
No. 2023AP2020-OA 

28

activity, and drawing all power into its impetuous vortex." The 

Federalist No. 48, supra, at 333. The legislative "powers being 

at once more extensive, and less susceptible of precise limits, it 

can with the greater facility, mask under complicated and indirect 

measures, the encroachments which it makes on the co-ordinate 

departments." Id. at 334. In granting the JFC the ability to 

stymie the executive branch from carrying out the laws passed by 

the legislature, the statutes encroach upon the governor's 

constitutional mandate to execute the law. 

¶33 While the legislature possesses the power to determine 

whether and how to fund the land acquisition portion of the 

Program,16 the constitution does not empower the legislature to 

participate in the execution of the law, nor can the legislature

give itself such authority. The legislative review provisions in 

Wis. Stat. §§ 23.0917(6m) and 23.0917(8)(g)3. violate the 

Wisconsin Constitution by assigning the core executive power to 

carry out the law to a legislative committee. The constitution's 

vesting of core powers in each of the three branches of government 

may not be statutorily altered. In declaring these separation of 

powers principles, we ensure the branches do not arrogate powers 

the people never gave them. 

IV. CONCLUSION

¶34 Article IV, Section 1 of the Wisconsin Constitution 

 

16 Flynn v. DOA, 216 Wis. 2d 521, 253-54, 576 N.W.2d 245 

(1998) ("The legislature, as the government body closest to the 

will of the people, may change an appropriation if, in their 

estimation, public policy so dictates. It is the legislature's 

role to determine whether to reallocate limited resources.").
No. 2023AP2020-OA 

29

vests broad authority in the legislature to pass laws reflecting 

the legislature's policy choices. In enacting the Program, the 

legislature elected to leave some decisions to executive branch 

discretion, subject to a legislative veto embodied in a committee 

the legislature empowered to reject the executive's manner of 

carrying out the law. Wisconsin Stat. §§ 23.0917(6m) and 

23.0917(8)(g)3. invade the executive branch's authority to "take 

care that the laws be faithfully executed," Wis. Const. Art. V, 

§ 4, by interfering with the exercise of discretion the legislature 

gave it to execute the Program. Maintaining the separation of 

powers between the branches is essential for the preservation of 

liberty and a government accountable to the people. By placing 

the power of the executive branch to carry out the law in a 

committee of the legislature, the legislative branch subsumed the 

executive power. Because §§ 23.0917(6m) and 23.0917(8)(g)3. give 

core executive power to the legislative branch, they are 

unconstitutional. 

By the court——Wis. Stat. §§ 23.0917(6m) and 23.0917(8)(g)3. 

are declared unconstitutional.
No. 2023AP2020-OA.awb

1

¶35 ANN WALSH BRADLEY, J. (concurring). Sometimes it is 

just as important to emphasize what a majority opinion is not about 

as it is to clarify what the opinion is about. This is such an 

occasion.

¶36 The focus of the majority opinion is on core executive 

powers. It need not, and does not, define the contours of any 

core legislative powers or shared powers. Additionally, despite 

the exchange in the separate writings below, this case is not about 

the non-delegation doctrine. It was not briefed or argued by the 

parties and the majority opinion does not address it.

¶37 Having delineated the substance of the majority opinion, 

I turn next to discuss why I concur. I join the majority opinion 

but write separately to briefly address the standard of review in 

constitutional cases. 

¶38 As in any case, our review in the present case is guided 

and circumscribed by our standard of review. In constitutional 

cases, we have long adhered to a standard that places a "heavy 

burden" on a challenging party. See, e.g., Mayo v. Wis. Injured 

Patients & Fams. Comp. Fund, 2018 WI 78, ¶27, 383 Wis. 2d 1, 914 

N.W.2d 678. 

¶39 Namely, we have presumed that a statute is 

constitutional and placed the onus on the challenger to demonstrate 

that the statute is unconstitutional "beyond a reasonable doubt." 

State v. Prado, 2021 WI 64, ¶37, 397 Wis. 2d 719, 960 N.W.2d 869; 

see also Cath. Charities Bureau, Inc. v. LIRC, 2024 WI 13, ¶¶5,

77, 94, 411 Wis. 2d 1, 3 N.W.3d 666; State v. Christen, 2021 WI 
No. 2023AP2020-OA.awb

2

39, ¶32, 396 Wis. 2d 705, 958 N.W.2d 746; State v. Roundtree, 2021 

WI 1, ¶18, 395 Wis. 2d 94, 952 N.W.2d 765; Winnebago County v. 

C.S., 2020 WI 33, ¶14, 391 Wis. 2d 35, 940 N.W.2d 875. The phrase 

"beyond a reasonable doubt" "expresses the 'force or conviction 

with which a court must conclude, as a matter of law, that a 

statute is unconstitutional before the statute . . . can be set 

aside.'" Mayo, 383 Wis. 2d 1, ¶27 (quoted source omitted). 

¶40 In the briefing in this case, the Governor advocated for 

a narrow alteration to our constitutional standard of review. This 

argument was circumscribed, advancing that the standard of review 

for constitutional cases should change in the context of a 

separation-of-powers dispute only. Namely, the Governor argued: 

"When the legislative branch passes a law that allegedly usurps 

another branch's core power, presuming such a statute to be valid 

would improperly place a thumb on the legislative branch's side of 

the scale." 

¶41 The argument is persuasive, and I agree with it. The 

reasoning behind this is succinctly stated in Justice Scalia's 

dissent in Morrison v. Olson, where it is explained that if the 

branches of government are to be truly equal, none may begin interbranch litigation with the advantage that a presumption of 

constitutionality affords: 

Where a private citizen challenges action of the 

Government on grounds unrelated to separation of powers, 

harmonious functioning of the system demands that we 

ordinarily give some deference, or a presumption of 

validity, to the actions of the political branches in 

what is agreed, between themselves at least, to be within 

their respective spheres. But where the issue pertains 

to separation of powers, and the political branches are 
No. 2023AP2020-OA.awb

3

(as here) in disagreement, neither can be presumed 

correct. 

487 U.S. 654, 704-05 (1988) (Scalia, J., dissenting). If the 

branches of government are "perfectly co-ordinate," then the 

playing field must be a level one. See id. at 705. Where the 

very issue before the court is the contours of the branches' powers 

vis-à-vis each other, it is not logical to begin the case with a 

slant in either direction.

¶42 I emphasize that our "beyond a reasonable doubt" 

standard of review retains vitality, but as presented in the 

argument before us, I conclude that the "beyond a reasonable doubt" 

standard is a poor fit in the separation-of-powers context. 

Abandoning the standard in the context of separation of powers 

evens the playing field between the branches, while leaving the 

standard of review for other types of constitutional challenges 

intact.

¶43 For the foregoing reasons, I respectfully concur.

¶44 I am authorized to state that Justices REBECCA FRANK 

DALLET and JANET C. PROTASIEWICZ join this concurrence.

 
No. 2023AP2020.rgb

1

¶45 REBECCA GRASSL BRADLEY, J. (concurring). "[T]hat the 

legislative, executive and judiciary departments ought to be 

separate and distinct" is an "essential precaution in favor of 

liberty." The Federalist No. 47, at 323 (James Madison) (Jacob E. 

Cooke ed., 1961). Like the Framers of the Federal Constitution, 

the Founders of our state believed the separation of powers was 

"essential to the preservation of liberty." The Federalist No. 

51, supra, at 348 (James Madison). The "tripartite separation of 

independent governmental power" enshrined in our constitutions 

"remains the bedrock of the structure by which we secure liberty 

in both Wisconsin and the United States." Gabler v. Crime Victims 

Rts. Bd., 2017 WI 67, ¶3, 376 Wis. 2d 147, 897 N.W.2d 384. 

¶46 The structural separation of powers protects the liberty 

of the People by barring the aggregation of power within one branch 

of government. League of Women Voters of Wis. v. Evers, 2019 WI 

75, ¶31, 387 Wis. 2d 511, 929 N.W.2d 209; Koschkee v. Taylor, 2019 

WI 76, ¶45, 387 Wis. 2d 552, 929 N.W.2d 600 (Rebecca Grassl 

Bradley, J., concurring); Gundy v. United States, 588 U.S. 128, 

156-57 (2019) (Gorsuch, J., dissenting). "[A] mere demarcation on 

parchment of the constitutional limits of the several 

departments," however, "is not a sufficient guard against those 

encroachments which lead to a tyrannical concentration of all the 

powers of government in the same hands." The Federalist No. 48, 

supra, at 338 (James Madison). Keeping each branch "within the 

limits assigned to their authority" rests largely with the 

judiciary because constitutional limitations on the exercise of 

governmental power "can be preserved in practice no other way than 
No. 2023AP2020.rgb

2

through the medium of courts of justice, whose duty it must be to 

declare all acts contrary to the manifest tenor of the Constitution 

void. Without this, all the reservations of particular rights or 

privileges would amount to nothing." The Federalist No. 78,

supra, at 524-25 (Alexander Hamilton). 

¶47 In 2017, this court protected the judicial branch's core 

powers from legislative interference. Gabler, 376 Wis. 2d 147. 

In 2019, this court safeguarded the legislature's core powers 

against judicial encroachment. League of Women Voters, 387 

Wis. 2d 511. Today, this court restores the executive branch's 

core powers after legislative arrogation. Consistent application 

of the separation of powers principles espoused in these cases 

requires the court to retrieve the legislature's core lawmaking 

power from the administrative apparatus residing in the executive 

branch. 

¶48 As the court expounded in Gabler and reiterates in this 

case, preservation of the separation of powers does not prefer one 

branch over another. We defend the constitutional boundaries of 

governmental authority to preserve individual freedom, to ensure 

the people remain sovereign over those to whom the people delegated 

the power to govern. "[D]eriving [its] just powers from the 

consent of the governed," Wisconsin's government was instituted to 

secure the people's inherent rights, including "life, liberty and 

the pursuit of happiness[.]" Wis. Const. art. I, § 1. 

¶49 Our constitution vests three separate branches——the 

legislature, the executive, and the judiciary——with particular 

powers, which no other branch may wield. See majority op., ¶9. 
No. 2023AP2020.rgb

3

"When the [g]overnment is called upon to perform a function that 

requires an exercise of legislative, executive, or judicial power, 

only the vested recipient of that power can perform it."1 Dep't 

of Transp. v. Ass'n of Am. R.R., 575 U.S. 43, 68 (2015) (Thomas, 

J., concurring in the judgment). Any deviation from the division 

of powers the people delegated to each branch would be 

illegitimate, having been made without the people's consent.

¶50 In this case, the court vindicates the constitution's 

design by holding the legislature cannot take for itself the 

executive's core function of executing the law, even if the 

executive at one time consented to the arrangement. The court's 

decision in this case does not enhance executive power; rather, it 

returns the legislature to its constitutionally prescribed domain. 

See Fabick v. Evers, 2021 WI 28, ¶57, 396 Wis. 2d 231, 956 

N.W.2d 856 (Rebecca Grassl Bradley, J., concurring) ("This court 

does not referee partisan battles; our duty is to ensure that each 

branch of government respects the constitutional limits of its 

authority."). The separation of powers, and its protection of the 

people's liberty, would collapse if one branch could seize for 

itself the powers of another. See Gabler, 376 Wis. 2d 147, ¶31. 

¶51 The constitution guards against one branch's attempts to 

cede its powers to another branch as much as it prevents one branch 

from usurping another branch's powers. Tetra Tech EC, Inc. v. 

 

1 While "[t]he allocation of powers in the Constitution is 

absolute," Dep't of Transp. v. Ass'n of Am. R.R., 575 U.S. 43, 69 

(2015) (Thomas, J., concurring in the judgment) (citation 

omitted), the powers of each branch at times overlap. See Gabler 

v. Crime Victims Rts. Bd., 2017 WI 67, ¶34, 376 Wis. 2d 147, 897 

N.W.2d 384. 
No. 2023AP2020.rgb

4

DOR, 2018 WI 75, ¶48, 382 Wis. 2d 496, 914 N.W.2d 21 (lead opinion) 

(a branch may not "abdicat[e]" or "abandon" its power and the other 

branches cannot "take [] up" the powers of another). 

"Acknowledging the dangers of accumulated power," our constitution 

"preclude[s] each branch of government from delegating its own 

vested powers." Fabick, 396 Wis. 2d 231, ¶54 (Rebecca Grassl 

Bradley, J., concurring). The legislative power, "the power to 

adopt generally applicable rules of conduct governing future 

actions by private persons——the power to 'prescrib[e] the rules by 

which the duties and rights of every citizen are to be regulated,' 

or the power to 'prescribe general rules for the government of 

society,'" Gundy, 588 U.S. at 153 (Gorsuch, J., dissenting)

(citations omitted) (alteration in original), belongs to the 

legislature alone. Wis. Const. art. IV, § 1 ("The legislative 

power shall be vested in a senate and assembly."); see also id.

art. IV, § 22 (creating one exception); Becker v. Dane Cnty., 2022 

WI 63, ¶¶76, 113-16, 403 Wis. 2d 424, 977 N.W.2d 390 (Rebecca 

Grassl Bradley, J., dissenting). 

¶52 The vesting clauses conclusively confer the powers each 

branch may exercise: "No one"——not the legislature, the executive, 

or the judiciary——may "alter [the] arrangement" enshrined in our 

constitution. Gundy, 588 U.S. at 153 (Gorsuch, J., dissenting); 

League of Women Voters, 387 Wis. 2d 511, ¶35 (quoting Goodland v. 

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

separation of powers 'operates in a general way to confine 

legislative powers to the legislature.'"); Wis. Legislature v. 

Palm, 2020 WI 42, ¶67, 391 Wis. 2d 497, 942 N.W.2d 900 (Rebecca 
No. 2023AP2020.rgb

5

Grassl Bradley, J., concurring) (footnote omitted) ("Statutory law 

being subordinate to the constitution, not even the people's 

representatives in the legislature may consolidate [] power in one 

person."). The "'power to make law . . . was reserved exclusively 

to the Legislature, and any attempt to abdicate it in any 

particular field, though valid in form, must, necessarily, be held 

void.'" Rules of Court Case, 204 Wis. 501, 503, 236 N.W. 717

(1931) (quoting State ex rel. Mueller v. Thompson, 149 Wis. 488, 

491, 137 N.W. 20 (1912)). "Because the people gave the legislature 

its power to make laws, the legislature alone must exercise it. 

Our constitutional structure confers no authority on any branch to 

subdelegate any powers the sovereign people themselves delegated 

to particular governmental actors." Fabick, 396 Wis. 2d 231, ¶56 

(Rebecca Grassl Bradley, J., concurring). 

¶53 This court's enforcement of the non-delegation doctrine 

embedded in our constitution eroded over time. The court has 

allowed executive branch officials and unelected bureaucrats to 

exercise the lawmaking power of the legislature, see, e.g., 

Koschkee, 387 Wis. 2d 552, ¶12 (stating "when administrative 

agencies promulgate rules, they are exercising legislative power 

that the legislature has chosen to delegate to them by statute"), 

provided adequate "procedural safeguards" are in place. Panzer v. 

Doyle, 2004 WI 52, ¶¶54-55, 70-71, 271 Wis. 2d 295, 680 N.W.2d 666, 

abrogated on other grounds by Dairyland Greyhound Park, Inc. v. 

Doyle, 2006 WI 107, 295 Wis. 2d 1, 719 N.W.2d 408; Gilbert v. 

State, Med. Examining Bd., 119 Wis. 2d 168, 186, 349 N.W.2d 68 

(1984); Westring v. James, 71 Wis. 2d 462, 468, 238 N.W.2d 695 
No. 2023AP2020.rgb

6

(1976); Watchmaking Examining Bd. v. Husar, 49 Wis. 2d 526, 536,

182 N.W.2d 257 (1971); Schmidt v. Dep't of Res. Dev., 39 

Wis. 2d 46, 57-58, 158 N.W.2d 306 (1968). The procedural 

safeguard requirement is not demanding. Panzer, 271 Wis. 2d 295,

¶¶70-71. The court replaced the constitution's bar on 

subdelegating legislative power with illusory "limits drawn by the 

judiciary." Fabick, 396 Wis. 2d 231, ¶61 (Rebecca Grassl Bradley, 

J., concurring); Becker, 403 Wis. 2d 424, ¶111 (Rebecca Grassl 

Bradley, J., dissenting).

¶54 The court's reluctance to enforce the constitutional 

constraints on subdelegation emerged long after Wisconsin's 

founding. "In the early years of Wisconsin's statehood, this court 

understood that the three branches of government could not delegate 

their vested powers, imposing substantive limitations on the 

legislature's assignment of authority to the executive to carry 

out the legislature's policies." Fabick, 396 Wis. 2d 231, ¶64 

(Rebecca Grassl Bradley, J., concurring). As the court in Slinger 

v. Henneman explained, "It is a settled maxim of constitutional 

law, that the power thus conferred upon the legislature cannot be 

delegated by that department to any other body or authority." 38 

Wis. 504, 509-10 (1875). "Legislators have no power to anoint 

legislators; only the people do." Becker, 403 Wis. 2d 424, ¶75 

(Rebecca Grassl Bradley, J., dissenting). Accordingly, the 

constitution requires that "a law must be complete, in all its 

terms and provisions, when it leaves the legislative branch of the 

government, and nothing must be left to the judgment of the 

electors or other appointee or delegate of the legislature." 
No. 2023AP2020.rgb

7

Dowling v. Lancashire Ins. Co., 92 Wis. 63, 74, 65 N.W. 738 (1896); 

accord State ex rel. Adams v. Burdge, 95 Wis. 390, 401-02, 70 N.W. 

347 (1897). Laws violating this rule were held "inoperative and 

void." Slinger, 38 Wis. at 510. It was only "in the wake of the 

Progressive era[] [that] this court began to uproot substantive 

limits on the legislature's delegation of its constitutionallyconferred powers." Fabick, 396 Wis. 2d 231, ¶64 (Rebecca Grassl 

Bradley, J., concurring). 

¶55 Apologists for delegations of legislative authority to 

the executive branch primarily invoke the ostensible "overpowering 

necessity" of modern governance. State ex rel. Wis. Inspection 

Bureau v. Whitman, 196 Wis. 472, 498, 220 N.W. 929 (1928); 

Koschkee, 387 Wis. 2d 552, ¶17 (quoting Gilbert, 119 Wis. 2d at 

184) ("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.'"); 

Mistretta v. United States, 488 U.S. 361, 372 (1989) (citations 

omitted) ("[O]ur jurisprudence has been driven by a practical 

understanding that in our increasingly complex society, replete 

with ever changing and more technical problems, Congress simply 

cannot do its job absent an ability to delegate power under broad 

general directives."). But "[t]hose to whom the people have 

conferred constitutional powers may not circumvent those grants 

simply 'because they believe that more or different power is 

necessary.'" Koschkee, 387 Wis. 2d 552, ¶46 (Rebecca Grassl 

Bradley, J., concurring) (quoting A.L.A. Schechter Poultry Corp. 

v. United States, 295 U.S. 495, 529 (1935)). Even "[e]xtraordinary 
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8

conditions"——such as a global pandemic——"do not create or enlarge 

constitutional power." A.L.A. Schechter, 295 U.S. at 528; Fabick, 

396 Wis. 2d 231, ¶50 (Rebecca Grassl Bradley, J., concurring); 

Palm, 391 Wis. 2d 497, ¶¶70, 73 (Rebecca Grassl Bradley, J., 

concurring). If emergencies do not enlarge the legislature's 

ability to delegate legislative power, then the permanent, ongoing 

"necessity" known as "modernity" does not either. See Philip 

Hamburger, Is Administrative Law Unlawful?, at 422 (2014). 

¶56 In this case, the court vindicates that principle, 

rejecting the legislative respondents' pragmatic arguments rooted 

in the supposed necessity of revamping the Founders' design in 

favor of modern, but constitutionally suspect, governance. 

Majority op., ¶28. "Whenever any branch of government exceeds the 

boundaries of authority conferred by the people, it is the duty of 

the judicial branch to say so." Palm, 391 Wis. 2d 497, ¶66 

(Rebecca Grassl Bradley, J., concurring). The first principles 

espoused in this court's decision should revitalize the dormant 

non-delegation doctrine, reject the discredited notion that the 

"necessities" of modern governance justify disregarding our 

constitution's commands, and restore our original understanding of 

the vesting clauses, which bar any subdelegation of the 

legislature's powers. 

¶57 Today, the court upholds the structural separation of 

powers enshrined in the constitution. Not all members of the 

majority have done so in the past. See, e.g., Becker, 403 

Wis. 2d 424, ¶30 (lead opinion) (minimizing the separation of 

powers as something the court has "inferred" but "never 
No. 2023AP2020.rgb

9

interpreted . . . in a literal sense"); League of Women Voters, 

387 Wis. 2d 511, ¶¶43-54 (Dallet, J., dissenting) (joined by Ann 

Walsh Bradley, J.) (dissenting from decision declaring the 

December 2018 extraordinary session of the Wisconsin Legislature

constitutional). As Chief Justice Annette Kingsland Ziegler notes 

in her dissent, "we have no assurance that constitutional 

principles . . . will be equally applied, in the same manner, 

across the board, to the other branches in the future." Dissent, 

¶83. The Chief Justice's concern is well founded. With respect 

to the exercise of governmental powers, three members of the 

majority (Justices Ann Walsh Bradley, Rebecca Frank Dallet, and 

Jill J. Karofsky) have invariably ruled against the legislature 

and in favor of the executive branch.2 They have been the only 

 

2 See, e.g., Clarke v. Wis. Elections Comm'n, 2023 WI 79, 410 

Wis. 2d 1, 998 N.W.2d 370 (adopting Governor Evers' position and 

invalidating the legislature's redistricting maps); Wis. Mfrs. &

Com. v. Evers, 2022 WI 38, ___ Wis. 2d ___, 977 N.W.2d 374 

(allowing Governor Evers' Department of Health Services to release 

the names of Wisconsin employers whose employees tested positive 

for COVID-19); Johnson v. Wis. Elections Comm'n, 2022 WI 14, 400 

Wis. 2d 626, 971 N.W.2d 402, rev'd sub nom. Wis. Legislature v.

Wis. Elections Comm'n, 595 U.S. 398 (per curiam)) 

(adopting Governor Evers' proposed congressional map and state 

legislative maps and rejecting the legislature's); Clean Wis.,

Inc. v. DNR, 2021 WI 72, 398 Wis. 2d 433, 961 N.W.2d 611 (ruling 

against the legislature and expanding executive branch power by 

allowing administrative agencies to impose requirements not 

explicitly permitted by statute); Clean Wis., Inc. v. DNR, 2021 WI 

71, 398 Wis. 2d 386, 961 N.W.2d 346 (ruling against the 

legislature and in favor of Governor Evers' Department of Natural 

Resources in allowing the DNR to impose requirements not explicitly 

permitted by statute); Fabick v. Evers, 2021 WI 28, ¶¶74-148, 396 

Wis. 2d 231, 956 N.W.2d 856 (Ann Walsh Bradley, J., dissenting) 

(joined by Dallet and Karofsky, JJ.) (dissenting from decision 

that Governor Evers' executive orders proclaiming successive 

states of emergency based on COVID-19 exceeded the Governor's 

powers); Democratic Nat'l Comm. v. Bostelmann, 2020 WI 80, ¶¶15-
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10

justices during the past five years to demonstrate uniform 

allegiance to one branch and unvarying hostility toward another.

¶58 "Working from an understanding of the [c]onstitution at 

war with its text and history," Justice Rebecca Frank Dallet's 

denialism toward the non-delegation doctrine——a foundational 

principle "respecting the people's sovereign choice to vest the 

legislative power in [the legislature] alone"——betrays a 

willingness to destabilize "a structure designed to protect [the 

 

27, 394 Wis. 2d 33, 949 N.W.2d 423 (Dallet, J., dissenting) 

(joined by Ann Walsh Bradley and Karofsky, JJ.) (dissenting from 

decision recognizing legislature's right to participate as a party 

in litigation defending the validity of state laws); Bartlett v.

Evers, 2020 WI 68, ¶¶109-71, 393 Wis. 2d 172, 945 N.W.2d 685 (Ann 

Walsh Bradley, J., concurring in part, dissenting in part) (joined 

by Dallet, J.) (in original action requesting a declaration 

that Governor Evers exceeded his constitutional authority to 

partially veto appropriation bills, Justices Ann Walsh Bradley and 

Dallet were the only justices who would have declared all of 

Governor Evers' vetoes constitutional); Serv. Emps. Int'l Union,

Loc. 1 v. Vos, 2020 WI 67, ¶¶163-88, 393 Wis. 2d 38, 946 N.W.2d 35 

(Dallet, J., concurring in part, dissenting in part) (joined by 

Ann Walsh Bradley, J.) (dissenting from decision upholding the 

constitutionality of the legislature's involvement in certain 

litigation prosecuted or defended by the attorney general and 

joining decision invalidating legislature's regulation of guidance 

documents issued by the executive branch); Wis. Legislature v.

Palm, 2020 WI 42, ¶¶122-30, 391 Wis. 2d 497, 942 N.W.2d 900 (Ann 

Walsh Bradley, J., dissenting) (joined by Dallet, J.) (dissenting 

from decision declaring Governor Evers' appointed DHS Secretary 

failed to follow the emergency rulemaking procedures established 

by the legislature and exceeded her powers in issuing order 

confining all people to their homes, forbidding travel and closing 

businesses); id., ¶¶132-63 (Dallet, J., dissenting) (joined by Ann 

Walsh Bradley, J.) (same); League of Women Voters of Wis. v. Evers, 

2019 WI 75, ¶¶43-54, 387 Wis. 2d 511, 929 N.W.2d 209 (Dallet, J., 

dissenting) (joined by Ann Walsh Bradley, J.) (dissenting from 

decision declaring the December 2018 extraordinary session of the 

legislature constitutional and embracing Governor Evers' position 

to the contrary).
No. 2023AP2020.rgb

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people's] liberties, minority rights, fair notice, and the rule of

law."3 Gundy, 588 U.S. at 149, 156 (Gorsuch, J., dissenting). 

Justice Dallet's concurrence lends credence to the Chief Justice's 

apprehension that four members of the majority will "restrain[] 

only the legislative branch" and will "aggregate power in the [] 

executive branch." Dissent, ¶83. Foreshadowing a contemporary 

remaking of the traditional "Schoolhouse Rock understanding of 

civics," Justice Dallet's concurrence, ¶62, Justice Dallet joined 

Justice Ann Walsh Bradley's dissent from a decision reaffirming 

that "when administrative agencies promulgate rules, they are 

exercising legislative power that the legislature has chosen to 

delegate to them by statute." Koschkee, 387 Wis. 2d 552, ¶12. In 

 

3 Justice Rebecca Frank Dallet's suggestion that the nondelegation doctrine "never existed" is plainly wrong. Justice 

Dallet's concurrence, ¶72. "Evidence of the non-delegation 

principle underlying the separation of powers in the Wisconsin 

Constitution has been well-documented by Wisconsin's seminal 

source for originalist constitutional interpretation." Becker v.

Dane Cnty., 2022 WI 63, ¶93, 403 Wis. 2d 424, 977 N.W.2d 390 

(Rebecca Grassl Bradley, J., dissenting) (citing A Convention

Editorial (1846), reprinted in The Movement for Statehood, 1845–

46, at 309, 310–11 (Milo M. Quaife ed., 1918)). "The nondelegation principle traces its origins to English law." Id., ¶97 

(citing Jarkesy v. SEC, 34 F.4th 446, 460 n.12 (5th Cir. 2022)). 

"Even the king of England, following the rise of popular 

sovereignty, was not permitted to transfer certain powers vested 

in him by Parliament." Id. (first citing Penal Statutes (1605), 

Coke, Reports, 7:36b–37a; and then citing Philip Hamburger, Is

Administrative Law Unlawful?, at 381 (2014)).

Although Justice Dallet decries the legislature's request for 

what she labels a "radical[] alter[ation]" of our separation of 

powers doctrine, she advocates for one herself, opining that making 

rules governing society is somehow an executive function if a 

statute allows for it——or is at least a shared power. Justice 

Dallet's concurrence, ¶¶67, 73. This vision of governmental power 

is a contemporary invention unknown at the founding.
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her concurrence in this case, Justice Dallet declares "it is 

unsettled whether executive branch agencies exercise legislative 

power at all when they execute a statute within the bounds set by 

the legislature, including by making administrative rules . . . ." 

Justice Dallet's concurrence, ¶73. This misconception of 

governmental power suggests this court will stray from its ring, 

masquerade as the ringmaster, and expansively redraw the ring of 

the executive while shrinking the legislature's. See Schoolhouse 

Rock: Three Ring Government (ABC March 13, 1979). 

¶59 The constitution cannot be construed as a one-way 

ratchet. The separation of powers must be maintained across the 

board, for both political branches irrespective of which party 

controls them. The constitution does not permit the legislature 

to wield the powers vested in the executive branch, nor does the 

constitution permit the legislature to cede its lawmaking 

authority to the executive. If this court fails to apply the 

separation of powers consistently, the court will compromise the 

structural integrity of the constitution and expose the people it 

protects to depredations of their liberty by facilitating the 

"gradual concentration of the several powers" in one branch. The 

Federalist No. 51, supra, at 349 (James Madison). While some 

members of this court may prefer (for now) the executive branch to 

the legislative, the constitution does not. Construing it 

otherwise risks the demise of our constitutional republic. 
No. 2023AP2020-OA.rfd

1

¶60 REBECCA FRANK DALLET, J. (concurring). I join the 

majority opinion and Justice Ann Walsh Bradley's concurrence. I 

write separately to emphasize that this case implicates only the 

governor's core power to faithfully execute the laws, and does not 

involve what we have called "shared powers" or implicate the socalled "non-delegation doctrine." No power was shared, and nothing 

was delegated. 

I

¶61 Our constitution creates a tripartite system of 

government, vesting the executive power in the governor, the 

legislative power in the senate and assembly, and the judicial 

power in the court system. See Wis. Const. art. IV, § 1; art. V, 

§ 1; art. VII, § 2. Because these powers are "conferred to a 

single branch by the constitution," they are the "core powers" of 

each branch. SEIU, Local 1 v. Vos, 2020 WI 67, ¶35, 393 Wis. 2d 38, 

946 N.W.2d 35. Where core powers are concerned, the separation of 

powers is clear: No branch may "take [another branch's core power] 

up and use it as its own." Id. (quoting another source). 

¶62 When only core powers are at issue, separation-of-powers 

questions often have clear answers. You don't need much more than 

a Schoolhouse Rock understanding of civics to know that the 

legislature can't pass a law authorizing a legislative committee 

to exercise the judicial power. See Schoolhouse Rock!, Three Ring 

Government (1979), https://www.youtube.com/watch?v=pKSGyiT-o3o

("Ring one, Executive. Two is Legislative, that's Congress. Ring 

three, Judiciary."). That power belongs to the judiciary. See

Wis. Const. art. VII, § 2. Likewise, the legislature cannot enact 
No. 2023AP2020-OA.rfd

2

statutes like Wis. Stat. §§ 23.0917(6m) and 23.0917(8)(g)3., which 

authorize a legislative committee "to make spending decisions for 

which the legislature has already appropriated funds and defined 

the parameters by which those funds may be spent." Majority op., 

¶19. That power belongs to the executive. See Wis. Const. art. 

V, § 1. 

¶63 But it is important to emphasize that this simple, corepowers vision of the separation of powers is just the beginning, 

not "an ending too." See Seila Law LLC v. Consumer Fin. Prot. 

Bureau, 591 U.S. 197, 265 (2020) (Kagan, J., concurring in part). 

Like the United States Constitution, the Wisconsin Constitution 

creates a separation of powers that is, "by design, neither rigid 

nor complete." See id. As we have put it, "determining 'where 

the functions of one branch end and those of another begin' is not 

always easy." SEIU, 393 Wis. 2d 38, ¶34 (quoting State v. Holmes, 

106 Wis. 2d 31, 42-43, 315 N.W.2d 703 (1982)). That is why we 

have recognized another category of governmental powers: Shared 

powers. Shared powers are those that "lie at the intersections 

of . . . core constitutional powers." State v. Horn, 226 

Wis. 2d 637, 643, 594 N.W.2d 772 (1999). In these "borderlands" 

between the branches' core powers, we have held that each branch 

may exercise power "but no branch may unduly burden or 

substantially interfere with another branch." Id. at 644. Nothing 

in our decision today alters that longstanding approach to shared 

powers, or undermines the basic insight of our shared powers cases: 

That the separation of powers must have some flexibility when the 

powers of coordinate branches of government intersect. 
No. 2023AP2020-OA.rfd

3

¶64 The legislature offered two unconvincing arguments for 

why the authority granted to the Joint Finance Committee by 

§§ 23.0917(6m) and 23.0917(8)(g)3. falls within the category of 

shared powers. First, because DNR is an executive branch agency 

created by statute, the legislature asserts that both it and the 

governor have "inherent interests" in DNR's execution of the 

Knowles-Nelson program. See Wis. Stat. § 15.34 (creating DNR). 

And second, because DNR spends money the legislature appropriated 

through the Knowles-Nelson program, the legislature's 

appropriations power justifies its authority to review those 

spending decisions DNR makes. 

¶65 The legislature's first argument is unpersuasive 

because, as we have said before, the governor "oftentimes carries 

out his functions through administrative agencies." SEIU, 393 

Wis. 2d 38, ¶97. When he does so, those agencies are "exercising 

executive power," even if they were created by the legislature. 

Id. In other words, "the legislature does not confer on 

administrative agencies the ability to exercise executive power; 

that comes by virtue of being part of the executive branch." Id., 

¶131. And as the majority opinion correctly explains, DNR is 

exercising core executive power when it administers the KnowlesNelson program. See majority op., ¶¶18-19. Although the 

legislature has the power to create agencies and define their scope 

of authority, "the power to spend appropriated funds in accordance 

with the law enacted by the legislature" falls within the 

executive's core power to faithfully execute the laws. Id., ¶18. 
No. 2023AP2020-OA.rfd

4

¶66 The legislature's second argument——that its power to 

pass appropriations bills means that whenever DNR spends money in 

accordance with an appropriation, that expenditure is an exercise 

of shared power——is similarly unavailing. To be sure, our 

constitution provides that "[n]o money shall be paid out of the 

treasury except in pursuance of an appropriation by law." Wis. 

Const. art. VIII, § 2. And this provision means that the 

legislature has a role to play with respect to appropriations; the 

legislature must make "an appropriation by law." Id. But once it 

does so, spending money "in pursuance of" that law falls within 

the core executive power to faithfully execute the laws. See id. 

¶67 Accepting either of the legislature's shared powers 

arguments would radically alter the separation of powers in 

Wisconsin. As we have suggested before, we would head down "a 

dangerous path" if we concluded that the legislature may control 

everything an agency or officer does simply because the legislature 

created that agency or officer. SEIU, 393 Wis. 2d 38, ¶131 

(explaining that similar reasoning would allow the legislature to 

control how circuit court judges exercise their judicial power 

since the legislature "did not have to create the circuit court 

position in the first place and could eliminate it"). And it is 

similarly dangerous to suggest that every expenditure of state 

money pursuant to a lawful appropriation somehow implicates shared 

powers. If that were true, then even a $5 expenditure under an 

already enacted appropriation could be conditioned on the approval 

of a single member of the legislature. That cannot be, because 

not only would it grind government to a halt, but it would also 
No. 2023AP2020-OA.rfd

5

allow one branch, the legislature, to dictate how and whether other 

branches may exercise their core powers. 

¶68 To summarize, this case doesn't involve shared powers at 

all. Rather, this case involves only the executive's core power 

to faithfully execute the laws. Because §§ 23.0917(6m) and 

23.0917(8)(g)3. purport to arrogate that core power to a 

legislative committee, thus allowing the legislature to impede the 

governor's exercise of his core power, these statutes are facially 

unconstitutional. 

II

¶69 Additionally, this case does not involve the so-called 

"non-delegation doctrine." Before explaining why, it is helpful 

first to identify what people mean when they invoke the "nondelegation doctrine." One formulation——widely accepted in our 

cases——is the simple inference derived from the three-branch 

structure of our government "that none of the three governmental 

powers——executive, legislative, or judicial——can be entirely 

delegated away from the branch to which the constitution vests 

it." Becker v. Dane County, 2022 WI 63, ¶30, 403 Wis. 2d 424, 977 

N.W.2d 390 (lead op.) (citing In re Constitutionality of § 251.18, 

Wis. Statutes, 204 Wis. 501, 503, 236 N.W. 717 (1931)). In other 

words, our constitution does not permit, for example, the wholesale 

delegation of the legislative power to the governor, or the 

executive power to the legislature. See id. 

¶70 Nevertheless, our constitution allows for some 

delegation of legislative authority. Klisurich v. DHSS, 98 

Wis. 2d 274, 279, 296 N.W.2d 742 (1980). Indeed, "[w]e have long 
No. 2023AP2020-OA.rfd

6

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.'" Koschkee v. Taylor, 2019 

WI 76, ¶17, 387 Wis. 2d 552, 929 N.W.2d 600 (quoting Gilbert v. 

Med. Examining Bd., 119 Wis. 2d 168, 184, 349 N.W.2d 68 (1984)). 

In assessing whether a law delegating legislative authority to an 

executive branch agency violates our constitution, we "examine 

both the substantive nature of the granted power and the adequacy 

of attending procedural safeguards against arbitrary exercise of 

that power." Becker, 403 Wis. 2d 424, ¶31 (lead op.). So long as 

a legislative grant of authority contains both an "ascertainable" 

purpose and "procedural safeguards," it is constitutional. 

Klisurich, 98 Wis. 2d at 280. The upshot of these cases is that 

our non-delegation inquiry, like its federal equivalent, "always 

begins (and often almost ends) with statutory interpretation." 

See Gundy v. United States, 588 U.S. 128, 135 (2019) (plurality 

op.). 

¶71 In recent years, however, some have argued that we should 

revisit these cases, and adopt a more restrictive version of the 

non-delegation doctrine that would prohibit the delegation of any 

legislative power to the other branches. See Becker, 403 

Wis. 2d 424, ¶33 (lead op.) (rejecting such an argument with 

respect to delegations of local authority to local health 

officials). In this case, an amicus curiae argued that the 

governor's separation-of-powers arguments "effectively ask this 

Court to . . . revitalize the non-delegation doctrine——but only to 

the extent that it aggregates power in the executive." And in her 
No. 2023AP2020-OA.rfd

7

concurrence, Justice Rebecca Grassl Bradley suggests that "[t]he 

first principles espoused in this court's decision should 

revitalize the dormant non-delegation doctrine, reject the 

discredited notion that the 'necessities' of modern governance 

justify disregarding our constitution's commands, and restore our 

original understanding of the vesting clauses, which bar any 

subdelegation of the legislature's powers." Justice Rebecca 

Grassl Bradley's concurrence, ¶56. 

¶72 This account of today's decision is incorrect, for 

several reasons. For starters, we cannot "revitalize" a "dormant" 

doctrine that never existed before. As some scholars have argued, 

the historical case for a more restrictive version of the nondelegation doctrine, at least at the federal level, is weak. See

Julian Davis Mortenson & Nicholas Bagley, Delegation at the 

Founding, 121 Colum. L. Rev. 277, 279-81 (2021); but see Ilan 

Wurman, Nondelegation at the Founding, 130 Yale L.J. 1490, 1494 

(2021) (arguing that "[a]lthough the history is messy," it supports 

a version of the non-delegation doctrine). Some proponents of a 

more restrictive version of the non-delegation doctrine 

nevertheless argue that "[t]he non-delegation principle traces its 

origins to English law," see Becker, 403 Wis. 2d 424, ¶97 (Rebecca 

Grassl Bradley, J., dissenting), specifically to an analogy from 

a supposed rule of the common law of agency that prevented agents 

from further delegating authority granted by their principal. See

id., ¶¶96-97. But "[i]t is hard to overstate the ahistoricity of 

this claim," because this supposed principle of the common law of 

agency may never have been widely accepted and, in any event, there 
No. 2023AP2020-OA.rfd

8

is no evidence anyone thought the analogy to agency law should 

govern constitutional interpretation. See Mortenson & Bagley, 

supra at 297. Moreover, the historical evidence for a more 

restrictive non-delegation doctrine in Wisconsin is virtually nonexistent. The sweeping claim that the people who drafted and 

ratified the Wisconsin Constitution in 1848 understood it 

implicitly to prohibit any delegation of authority from one branch 

to another one demands far more evidence than a couple of newspaper 

editorials in 1846 describing the legislature in passing as "agents 

of the people," or explaining that "[a]ll legitimate power proceeds 

from the people." See Becker, 403 Wis. 2d 424, ¶¶93-95 (Rebecca 

Grassl Bradley, J., dissenting) (quoting Taxation——Borrowing Money

(1846) and A Convention Editorial (1846), reprinted in The Movement 

for Statehood, 1845-46, at 179, 310 (Milo M. Quaife, ed. 1918)). 

Given the lack of historical evidence in Wisconsin supporting a 

more restrictive version of the non-delegation doctrine, it should 

not be a surprise that we have "never interpreted" the Wisconsin 

Constitution "in a literal sense to bar the delegation of any 

legislative power outside the senate and assembly." Becker, 403 

Wis. 2d 424, ¶30 (lead op.). 

¶73 But putting history aside, the substantive case for a 

more restrictive version of the non-delegation doctrine is also 

weak under the Wisconsin Constitution. All our constitution says 

is that the legislative, executive, and judicial powers are vested 

in each respective branch of government. See Wis. Const. art. IV, 

§ 1; art. V, § 1; art. VII, § 2. It contains no express limitation 

on delegations of that authority; the non-delegation doctrine is 
No. 2023AP2020-OA.rfd

9

simply an inference from our constitutional structure. Moreover, 

it is unsettled whether executive branch agencies exercise 

legislative power at all when they execute a statute within the 

bounds set by the legislature, including by making administrative 

rules pursuant to legislative authorization. Even if agencies do, 

however, "exercise both executive and legislative powers" in such 

circumstances, see SEIU, 393 Wis. 2d 38, ¶130, a more restrictive 

version of the non-delegation doctrine may nevertheless be in 

tension with our shared powers cases. See Horn, 226 Wis. 2d at 

643-44. If administrative agencies exercise shared powers without 

"unduly burden[ing] or substantially interfer[ing] with another 

branch," there is no separation-of-powers problem. Id. at 644. 

¶74 But more fundamentally, accepting the governor's 

position in this case does not implicate any version of the nondelegation doctrine, let alone a more restrictive one. Sections 

23.0917(6m) and 23.0917(8)(g)3. purport to claim a power for the 

Joint Finance Committee that was never the legislature's to begin 

with: The executive power to faithfully execute the law. "The 

legislature cannot delegate a power it does not have."1 Panzer v. 

Doyle, 2004 WI 52, ¶61, 271 Wis. 2d 295, 680 N.W.2d 666, abrogated 

on other grounds by Dairyland Greyhound Park, Inc. v. Doyle, 2006 

 

1 Moreover, to the extent our cases have ever been concerned 

with delegations of authority from one branch to another it has 

been the legislature delegating some of its power to the executive 

or the judiciary. See, e.g., Klisurich, 98 Wis. 2d at 279-80; 

Panzer v. Doyle, 2004 WI 52, ¶¶53-58, 271 Wis. 2d 295, 680 

N.W.2d 666, abrogated on other grounds by Dairyland Greyhound 

Park, Inc. v. Doyle, 2006 WI 107, 295 Wis. 2d 1, 719 N.W.2d 408; 

Town of Beloit v. City of Beloit, 37 Wis. 2d 637, 643-45, 155 

N.W.2d 633 (1968). 
No. 2023AP2020-OA.rfd

10

WI 107, 295 Wis. 2d 1, 719 N.W.2d 408. And for that reason, this 

case doesn't involve the non-delegation doctrine at all. 

* * *

¶75 I conclude by addressing a disturbing aspect of some 

recent opinions in our court, which level accusations of bad faith 

and bias against my colleagues and me. Here, we have two separate 

writings that do so. In her dissent, Chief Justice Ziegler stoops 

to accusations of bad faith and political bias rather than engage 

in a reasoned debate about the law. And Justice Rebecca Grassl 

Bradley can't pass up an opportunity to join in. In a bizarre 

twist, she writes separately to accuse the very justices who join 

her majority opinion of doing so only for political reasons. 

¶76 At best, these writings are a distraction from what 

should be the focus. Today, we reached a nearly unanimous 

conclusion that §§ 23.0917(6m) and 23.0917(8)(g)3. violate the 

separation of powers enshrined in our constitution. This case 

illustrates how we can reach consensus, even when weighty issues 

are involved. 

¶77 Perhaps it is inevitable that some will mistake our 

decisions simply as "wins" for one set of political interests over 

another. But Wisconsin Supreme Court Justices should not fuel 

those misperceptions with headline-seeking rhetoric. Doing so 

undermines the rule of law and harms both this institution and our 

state. We are all judges committed to fairly, neutrally, and 

impartially considering the issues before us without prejudgment 

and rendering decisions that follow the law, not the party line. 
No. 2023AP2020-OA.rfd

11

No one——least of all other members of this court——should suggest 

otherwise. 

¶78 I am authorized to state that Justices ANN WALSH BRADLEY, 

JILL J. KAROFSKY, and JANET C. PROTASIEWICZ join this opinion. 
No. 2023AP2020-OA.akz

1

¶79 ANNETTE KINGSLAND ZIEGLER, C.J. (dissenting). As was 

said in the dissent to the order granting this petition for 

original action, this case "raises substantial questions about the 

proper roles of the executive and legislative branches under the 

Wisconsin Constitution."1 There is no doubt that the legal 

questions presented in this case affect matters of statewide 

importance,2 but there is no emergency here, nor was there a need 

to fast-track just one issue in the case——a challenge to the 

Knowles-Nelson Stewardship Program, outlined in Wis. Stat. 

§ 23.0917 and administered through the Department of Natural 

Resources ("DNR").3 In this one of three issues handpicked by four 

members of the court, we have been asked to decide whether the 

Wisconsin Legislature's Joint Committee on Finance's ("JFC") 

vetoes of the DNR's choices relating to the Knowles-Nelson 

 

1 Order granting petition for original action, Evers v. 

Marklein, No. 2023AP2020-OA, unpublished order (Wis. Feb. 2, 

2024), at 4 (Hagedorn, J., dissenting). 

2 Legal questions which affect matters of statewide importance 

are traditionally a prerequisite for this court to accept a case. 

See Wis. Stat. § (Rule) 809.62(1r):

CRITERIA FOR GRANTING REVIEW. Supreme court review is a 

matter of judicial discretion, not of right, and will be 

granted only when special and important reasons are 

presented. The following, while neither controlling nor 

fully measuring the court's discretion, indicate 

criteria that will be considered:

(a) A real and significant question of federal or 

state constitutional law is presented. 

§ (Rule) 809.62(1r)(a).

3 Marklein, No. 2023AP2020-OA, unpublished order, supra n.1, 

at 1. 
No. 2023AP2020-OA.akz

2

Stewardship program, which vetoes are authorized by § 23.0917(6m) 

and (8)(g)3., facially violate the separation of powers. "As is 

often the case with original-jurisdiction petitions, the question 

is not whether we can grant the petition but whether we should." 

Johnson v. Wisconsin Elections Comm'n, No. 2021AP1450-OA, 

unpublished order, at 14 (Wis. Sept. 22, 2021) (Dallet, J., 

dissenting from grant of petition for original action). Here, the 

issues, together, should be fully vetted.4

 

4 In this one case, there are three issues. Four members of 

the court selected one issue to decide, leaving the following two 

issues "held in abeyance pending further order of the court":

[Issue 2] Wisconsin's biennial budget bill, 2023 Wis. 

Act 19, provides a pay adjustment for [University of 

Wisconsin (UW)] and all other state employees. Again, 

courts have universally recognized that spending 

appropriated funds is an executive power and that 

legislative committees cannot block the executive's 

exercise of that power. Wisconsin Stat. § 230.12(3)(e)1. 

authorizes the Joint Committee on Employment Relations, 

an eight-member legislative committee, to veto UW's pay 

adjustments. Does this veto provision facially violate 

the separation of powers?

[Issue 3] Under various provisions of Wis. Stat. ch. 

101, [Department of Safety and Professional Services 

(DSPS)] is charged with promulgating rules relating to 

commercial building safety, accessibility, and energy 

efficiency. Under Wis. Stat. § 457.03(2), the Marriage 

and Family Therapy, Professional Counseling, and Social 

Work Examining Board is responsible for developing 

ethics standards for social workers, marriage and family 

therapists, and professional counselors. Courts have 

broadly recognized that blocking executive branch 

agencies' rules violates bicameralism and presentment 

procedures and infringes on executive and judicial 

authority. Wisconsin Stat. §§ 227.19(5)(c), (d), (dm), 

and 227.26(2)(d) and (im) authorize the Joint Committee 

for Review of Administrative Rules, a 10-member 

legislative committee, to veto administrative rules. Do 

these veto provisions violate the separation of powers 
No. 2023AP2020-OA.akz

3

¶80 As stated in the dissent to the order accepting this 

petition:

Under current law, the [JFC] has reviewed 

gubernatorial appropriations under the Knowles-Nelson 

Stewardship Program (the Program) for more than fifteen 

years. 2007 Wis. Act 20, § 646t; Wisconsin Legislative 

Fiscal Bureau, Warren Knowles-Gaylord Nelson Stewardship 

Program (Informational Paper # 61, prepared by Eric 

Hepler, Jan. 2019). The Governor suddenly asserts this 

legislative oversight of appropriations under the 

 

by allowing this committee to block executive agency 

rulemaking or, at minimum, DSPS's and the Board's 

rulemaking authority over commercial building standards 

and ethics standards for social workers, marriage and 

family therapists, and professional counselors?

Interestingly, employing the opposite approach, those four 

members of the court recently granted two separate cases, with 

separate issues therein, to be decided together even though 

normally one would be held in abeyance. See Kaul v. Urmanski, No. 

2023AP2362, unpublished order (Wis. July 2, 2024) (granting 

petition for bypass), and Planned Parenthood v. Urmanski, No. 

2024AP330-OA, unpublished order (Wis. July 2, 2024) (granting 

petition for original action). As to these two separate cases, 

Justice Karofsky tried to justify this disparate treatment, 

stating: 

Here, the court is granting a petition whose 

resolution may depend on how we rule in another 

case . . . . [I]t is not particularly groundbreaking for 

this court to schedule two cases with interdependent 

issues at the same time. . . .

The court does not know how it should resolve a 

particular case until it reviews all of the arguments 

made by the parties. Consequently, it makes good sense 

to hear all of the relevant legal arguments before 

rendering a decision . . . .

Planned Parenthood, No. 2024AP330-OA, unpublished order at 4 

(Karofsky, J., concurring) (emphasis added). For the new majority, 

different principles apply depending on whether a "pet issue" is 

at stake. Planned Parenthood, No. 2024AP330-OA, unpublished order 

at 11 (Hagedorn, J., dissenting). 
No. 2023AP2020-OA.akz

4

Program violates the separation of powers doctrine and 

urgently warrants this court invoking its original 

jurisdiction. The timing is no coincidence; the 

Governor knows he has a friendly foursome standing by to 

do his bidding. 

Evers v. Marklein, No. 2023AP2020-OA, unpublished order (Wis. 

Feb. 2, 2024), at 2-3 (Rebecca Grassl Bradley, J., dissenting). 

Here, "[i]nvoking our original jurisdiction sets this court on a 

perilous path to resolve interbranch disputes whenever the 

Governor complains the Legislature is hindering his policy 

agenda." Id. at 3.

¶81 Nonetheless, and despite the strong dissent of three of 

their colleagues, four members of the court handpicked but one 

issue to fast-track and decide.5 I dissented then, and I dissent 

now. Consistency has not always been the new majority's strong 

suit, but when it comes to picking political favorites, they have 

 

5 This term, four members of the court have established a 

consistent record of handpicking and fast-tracking certain 

political "pet issues"——issues such as redistricting, absentee 

voting, ballot box use, and abortion. See, e.g., Clarke v. 

Wisconsin Elections Comm'n, 2023 WI 79, ¶¶78-184, 410 Wis. 2d 1, 

998 N.W.2d 370 (Ziegler, C.J., dissenting) (redistricting); Brown 

v. Wisconsin Elections Comm'n, No. 2024AP232, unpublished order

(Wis. May 3, 2024) (absentee voting practices); Priorities USA v. 

Wisconsin Elections Comm'n, No. 2024AP164, unpublished order (Wis. 

Mar. 12, 2024) (ballot drop boxes); Planned Parenthood, No. 

2024AP330-OA, unpublished order supra n.4 (abortion).
No. 2023AP2020-OA.akz

5

been unwaveringly faithful to the cause.6 Instead of allowing this 

case to proceed through the process, sifting and winnowing the 

issues, and then taking all the issues at the same time, which 

would serve to produce consistency, they forge on. Selecting an 

issue that only impacts the Republican-controlled legislature and 

the longstanding Knowles-Nelson Stewardship Program should raise 

eyebrows. Determining all issues at the same time could serve to 

hold my colleagues to application of the same principles in the 

same way, even when it comes to a Democratic-controlled branch of 

government. Unfortunately, we will wait to see if that consistency 

will be forthcoming, as the majority handpicked and now limits 

only the legislative branch's longstanding, statutorily authorized

practice. 

¶82 Simply stated, there is no good reason why those four

members of the court gave preferential selection to part of this 

case, fast-tracking only one of the three issues, rushing to decide 

that lone issue, which just happens to limit legislative power

only. What's the rush? There is absolutely no good reason to 

have handpicked this case and this one issue, ahead of all the 

other cases, taking it out of turn, and placing it to the front of 

 

6 See Clarke, 410 Wis. 2d 2, ¶¶78-184 (Ziegler, C.J., 

dissenting); Brown v. Wisconsin Elections Comm'n, No. 2024AP232, 

unpublished order (Wis. Jun. 11, 2024) (Rebecca Grassl Bradley,

J., dissenting to grant of motion for stay (in part) pending 

appeal); Brown, No. 2024AP232, unpublished order supra n.5, at 4-

10 (Ziegler, C.J., dissenting to grant of petition for bypass); 

Priorities USA v. Wisconsin Elections Comm'n, No. 2024AP164, 

unpublished order (Apr. 18, 2024), at 2 (Hagedorn, J., dissenting 

to grant of Governor's motion to intervene); Priorities USA, No. 

2024AP164, unpublished order supra n.5, at 2-6 (Rebecca Grassl 

Bradley, J., dissenting to grant of petition for bypass).
No. 2023AP2020-OA.akz

6

the line. That is not our usual practice, nor should it be. We 

should not be picking favorites and delivering results. 

¶83 As to the merits of this case, I recognize that the 

majority opinion has cabined its analysis to separation of powers 

principles and concludes that the legislative branch cannot 

exercise a core power of the executive branch. I raise concern 

about deciding this one issue alone, applying these principles to 

the legislature only. At least two of my colleagues would not 

have decided this one issue alone in this case at this time.7 If 

this becomes a singular application of separation of power 

principles or the non-delegation doctrine, which restrains only 

the legislative branch, that amounts to aggregation of power which 

runs counter to fundamental constitutional principles. The 

principles the majority applies today must have consistent 

application, which could have been more even-handedly accomplished 

by hearing all the issues in due course. Because this sole issue 

is being decided in a vacuum and on an expedited basis, we are at 

risk of seeing a selective application of separation of power and 

 

7 See Marklein, No. 2023AP2020-OA, unpublished order supra

n.1, at 2 (Rebecca Grassl Bradley, J., dissenting) ("By accepting 

only one of the issues raised by the Governor and holding the other 

two issues in abeyance, the majority refashions this court as the 

Governor's avenue for imposing policy changes without the consent 

of the governed. When the majority's political allies say jump, 

the new majority responds: 'How high?'"); see also Marklein, No. 

2023AP2020-OA, unpublished order supra n.1, at 5 (Hagedorn, J., 

dissenting) ("Letting a case mature through the normal process is 

not the only reason we should exercise caution here. This claim 

involves a power struggle between the executive and legislative 

branches. . . . Because the court here enters the fray too 

quickly, we risk further incentivizing what Justice Scalia called 

the 'overjudicialization of the process of self-governance[.]'").
No. 2023AP2020-OA.akz

7

non-delegation principles and, ultimately, imbalance between the 

branches. The petitioners8 effectively ask this court to 

revitalize separation of powers and the non-delegation doctrine, 

but as applied to the Republican-controlled branch only. This 

limited application could ultimately serve to aggregate power in 

the Democratic-controlled executive branch. Without considering 

all issues together and in due course, the doctrine may be applied 

inconsistently. Here, because one issue is being taken up in a 

vacuum, handpicked for quick "justice," we have no assurance that 

constitutional principles, whether separation of powers or nondelegation doctrine principles, will be equally applied, in the 

same manner, across the board, to the other branches in the future. 

For that, we wait. Those issues were not fast-tracked for decision 

this term.

¶84 Instead, my colleagues who accepted this case for review 

and then accepted only one limited issue, fail to "see the prudence 

of patience and humility" and the worth of proceeding cautiously.9 

The statutory authority that the JFC has retained over the KnowlesNelson Stewardship Program complies with bicameralism and 

 

8 In this instance, "the petitioners" refers to Governor Tony 

Evers and Gathering Waters, Inc. 

9 Marklein, No. 2023AP2020-OA, unpublished order supra n.1, 

at 5 (Hagedorn, J., dissenting). 
No. 2023AP2020-OA.akz

8

presentment requirements,10 as the JFC's authority to review 

expenditures was voted on by the entire legislature and signed by 

the governor. The decision the court makes today limits only the 

Republican legislature's continued control over already allocated 

money——a longstanding practice. Having said that, no relief 

appears to exist for the legislature to claw back appropriations 

that it may not have allocated if it knew that it would lose any 

ability to ensure the expenditures were being made appropriately. 

Government tends to spend what it has been allocated, and this 

procedure provided a check on that spending. 

¶85 The majority does not grapple with the unintended 

consequences of this ruling. Consequential reasoning is not 

necessarily legal reasoning, but there are likely practical 

implications. An unintended consequence might be that this opinion 

could be used to impact other longstanding practices, even though 

this opinion is limited to this one program. Another unintended 

consequence may be that the legislature will proceed quite 

differently in its decision making and allocations. For example, 

the legislature could decide that it will no longer allocate funds 

to the longstanding and respected Knowles-Nelson Stewardship 

Program. This could result in less, not more, allocations for 

 

10 The Wisconsin Constitution does differ from the United 

States Constitution. The Wisconsin Constitution requires "[e]very 

bill which shall have passed the legislature shall, before it 

becomes a law, be presented to the governor." Wis. Const. art. V, 

§ 10(1)(a). The United States Constitution requires "[e]very 

order, resolution, or vote" to be presented to the President. U.S. 

Const. art. I, § 7. Our court should not be so quick to determine 

that the Wisconsin Constitution requires presentment in the same 

manner, as the language of the Wisconsin Constitution appears to 

be more limited.
No. 2023AP2020-OA.akz

9

important projects, like those accomplished by the Knowles-Nelson 

Stewardship Program. The legislature may need to, more formally 

and less efficiently, address funding of individual worthy 

projects, because continued control of the purse has been limited.

¶86 More specifically with respect to the issue at hand, I 

lament how handpicking this lone issue has the appearance of being

just one more in a series of political "power grabs."11 Why now 

is it so important to put a stop to this decades' long practice? 

For decades, the legislature has used joint committees, like this 

one, to review actions by the governor and state agencies. This 

practice has been approved, tacitly or explicitly, by all three 

branches of government: the legislative, executive, and judicial 

branches. The statutes at issue were passed by the legislature 

and signed by the governor and each branch operated pursuant to 

them. These practices were cloaked with judicial approval. 

¶87 In J.F. Ahern Co. v. Wisconsin State Building Comm'n, 

114 Wis. 2d 69, 336 N.W.2d 679 (Ct. App. 1983), the court of 

 

11 See Clarke, 410 Wis. 2d 1, ¶¶78-184 (Ziegler, C.J., 

dissenting); Statement of Chief Justice Annette Kingsland Ziegler 

(Aug. 2, 2023), https://www.wispolitics.com/2023/chief-justiceannette-kingsland-ziegler-statement/; Press Release, Chief 

Justice Annette Kingsland Ziegler (Aug. 4, 2023), 

https://www.wicourts.gov/news/archives/view.jsp?id=1578&year=202

3; Clarke v. Wisconsin Elections Comm'n, No. 2023AP1399-OA, 

published order (Wis. Oct. 6, 2023), at 34-35 (Hagedorn, J., 

dissenting to grant of petition for leave to commence original 

action) (noting that in spite of petitioners "standing by until 

the court's composition changed, the court dutifully adopts an 

accelerated briefing and oral argument schedule. It even changed 

our internal writing deadlines on original actions to ensure this 

case would be fast-tracked"), 

https://www.wicourts.gov/courts/supreme/origact/docs/23ap1399_10

06order.pdf; see also ¶83 n.7, supra. 
No. 2023AP2020-OA.akz

10

appeals unanimously determined that it was not a violation of 

Wisconsin's separation of powers doctrine to allow a legislative 

committee such as the JFC——in this instance, the State Building 

Commission12——to "exercise executive powers to the exclusion of the 

executive branch." J.F. Ahern Co., 114 Wis. 2d at 108. The court 

determined the Commission's "apparent ability to exclude the 

executive branch from exercise of its own powers does 

not . . . necessarily violate the separation doctrine . . . ." 

Id. Rather, "[a] practical requirement of unanimity between the 

legislative members of the Building Commission, on the one hand, 

and the governor, on the other, therefore exists. That compulsory 

unanimity converts the shared power over building construction

into a cooperative venture between the two governmental branches." 

Id. Our court did not overturn that decision until now, over 40 

years later. For decades, the legislative and executive branches 

relied on those principles and complied with them.

¶88 In Martinez v. DILHR, 165 Wis. 2d 687, 478 N.W.2d 582 

(1992), our court unanimously held it was constitutional for the 

joint legislative committee to suspend agency rules. Martinez, 

165 Wis. 2d at 699-700. J.F. Ahern Co. was cited with approval.

See id. at 697 (citing J.F. Ahern Co., 114 Wis. 2d at 88)

("Legislative power may be delegated to an administrative agency 

 

12 The State Building Commission is a legislative committee, 

"controlled by six legislators," which "shares executive powers 

with the governor and one voting citizen member appointed by the 

governor." J.F. Ahern Co. v. Wisconsin State Building Comm'n, 114

Wis. 2d 69, 106-07, 336 N.W.2d 679 (Ct. App. 1983). The Building 

Commission, among other things, controls construction contracts 

for the construction of state office buildings.
No. 2023AP2020-OA.akz

11

as long as adequate standards for conducting the allocated power 

are in place."). The legislature is endowed with constitutional 

authority to manage the public fisc and has the constitutional 

power of the purse.13 The JFC has operated as a vehicle for the 

legislature to remain "accountable" for governing the public fisc 

and to "check on the activities of non-elected agency bureaucrats." 

Martinez, 165 Wis. 2d at 701.14

 

13 See Wis. Const. art. VIII, § 2 ("No money shall be paid out 

of the treasury except in pursuance of an appropriation by law."); 

see also Wis. Const. art. VIII, § 5 ("The legislature shall provide 

for an annual tax sufficient to defray the estimated expenses of 

the state for each year; and whenever the expenses of any year 

shall exceed the income, the legislature shall provide for levying 

a tax for the ensuing year, sufficient, with other sources of 

income, to pay the deficiency as well as the estimated expenses of 

such ensuing year."). 

14 Martinez v. DILHR, 165 Wis. 2d 687, 478 N.W.2d 582 (1992), 

is a "horizontal precedent" which binds this court, absent a 

showing of a special justification for overruling it. It is not 

overturned by the majority. See Bryan A. Garner, et al., The Law 

of Judicial Precedent 35 (2016) (Horizontal Precedents) ("A high 

court . . . generally adheres to horizontal precedents——namely, 

its own earlier decisions. But if there is a special justification 

to depart from or overrule precedent, a full court may overturn 

its own prior decision."); see also Johnson Controls, Inc. v. Emp.

Ins. of Wausau, 2003 WI 108, ¶94, 264 Wis. 2d 60, 665 N.W.2d 257; 

State v. Johnson, 2023 WI 39, ¶¶19-20, 407 Wis. 2d 195, 990 

N.W.2d 174; State v. Young, 2006 WI 98, ¶51 n.16, 294 Wis. 2d 1, 

717 N.W.2d 729. Adherence to precedent is "the preferred course 

because it promotes the evenhanded, predictable, and consistent 

development of legal principles, fosters reliance on judicial 

decisions, and contributes to the actual and perceived integrity 

of the judicial process." Payne v. Tennessee, 501 U.S. 808, 827 

(1991); see also Johnson Controls, Inc., 264 Wis. 2d 60, ¶95; 

Progressive N. Ins. Co. v. Romanshek, 2005 WI 67, ¶41, 281 

Wis. 2d 300, 697 N.W.2d 417 ("Any time this court is asked to 

overturn a prior case, we must thoroughly consider the doctrine of 

stare decisis.").
No. 2023AP2020-OA.akz

12

¶89 The court pays little heed to the doctrine of stare 

decisis when it reaches its conclusions and technically it need 

not with respect to a court of appeals decision. Although the 

majority reverses a court of appeals case rather than our 

precedent, all three branches of government have engaged in the 

longstanding practices of the JFC. Given the longstanding practice 

recognized and approved by all three branches of government and 

cited with approval in Martinez, 165 Wis. 2d at 697, it seems fair 

to at least talk about stare decisis principles. We "repeatedly 

recognized the importance of stare decisis to the rule of law." 

State v. Johnson, 2023 WI 39, ¶19, 407 Wis. 2d 195, 990 N.W.2d 174. 

We "follow[] the doctrine of stare decisis scrupulously . . . ." 

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

(quoting Johnson Controls, Inc. v. Emp. Ins. of Wausau, 2003 WI 

108, ¶94, 264 Wis. 2d 60, 665 N.W.2d 257).15

 

15 J.F. Ahern Co., 114 Wis. 2d 69, is a court of appeals 

decision which generally this court is neither bound by nor needs 

special justification to overturn. See Cook v. Cook, 208 

Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997) (determining that this 

court "has the power to overrule, modify, or withdraw language 

from a published opinion of the court of appeals"); see also State 

v. Johnson, 407 Wis. 2d 195, ¶20 ("[W]e have never required a 

special justification to overturn a decision of the court of 

appeals."). Nonetheless, stare decisis principles are worth 

noting. "[A]ny departure from the doctrine of stare decisis 

demands special justification." Johnson Controls, Inc., 264 

Wis. 2d 60, ¶94; see also State v. Johnson, 407 Wis. 2d 195, ¶19; 

Young, 294 Wis. 2d 1, ¶51 n.16; Schultz v. Natwick, 2002 WI 125, 

¶37, 257 Wis. 2d 19, 653 N.W.2d 266. These special justifications 

include:

(1) the law has changed in a way that undermines the 

prior decision's rationale; (2) there is a "need to make 

a decision correspond to newly ascertained facts;" (3) 

our precedent "has become detrimental to coherence and 
No. 2023AP2020-OA.akz

13

¶90 Unfortunately, facilitating inconsistency in the law, as 

has been the practice of the new majority, does not put the state 

of Wisconsin on better footing. While I recognize that the court 

declares this JFC review to be unconstitutional because it violates

separation of powers, stare decisis principles are absent and 

overturning case law has been wrongly based on mere disagreement 

with a prior decision. See Clarke v. Wisconsin Elections Comm'n, 

2023 WI 79, ¶¶78-184, 410 Wis. 2d 1, 998 N.W.2d 370 (Ziegler, C.J., 

dissenting) (redistricting); see also, State v. Roberson, 2019 WI 

102, ¶97, 389 Wis. 2d 190, 935 N.W.2d 813 (Dallet, J., dissenting) 

(quoted source omitted) ("The outcome of a case should not turn on 

whether the current members of the court find one legal argument 

more persuasive but, rather, on '"whether today's [majority] has 

come forward with the type of extraordinary showing that this court 

has historically demanded before overruling one of its 

precedents."'"); Ramos v. Louisiana, 590 U.S. 83, 121-22 (2020) 

(Kavanaugh, J., concurring in part) ("A garden-variety error or 

disagreement does not suffice to overrule. In the view of the 

Court that is considering whether to overrule, the precedent must 

be egregiously wrong as a matter of law in order for the Court to 

overrule it."). 

¶91 For over a century, the JFC has been an important part 

of how allocations in Wisconsin are managed. This longstanding 

 

consistency in the law;" (4) the decision is "unsound in 

principle;" or (5) it is "unworkable in practice."

State v. Johnson, 407 Wis. 2d 195, ¶20 (citing Young, 294 Wis. 2d 

1, ¶51 n.16). 
No. 2023AP2020-OA.akz

14

review structure allowed joint legislative committees to approve 

or reject important matters. The JFC reviews certain limited 

expenditures by the DNR to address the Knowles-Nelson Stewardship 

Program. For decades, the JFC has been a fundamental part of 

governmental structure in Wisconsin. While application of 

separation of power principles are the basis for the court's 

conclusion that the JFC's authority to review DNR spending 

decisions is unconstitutional, we know not the other implications 

of this decision even though the majority limits its decision to 

the one issue selected——the Knowles-Nelson Stewardship Program. 

That program and the JFC have long functioned in a fundamental and 

important way to allow review and decision making regarding fiscal 

expenditures. 

¶92 The JFC is a statutory standing committee, constituted 

under the Wisconsin Legislature. The JFC exists to review all 

state appropriations and revenues, including the governor's 

recommended budget and other fiscal bills, as well as providing 

supplementation of agency appropriations. The JFC also is 

empowered to attach an emergency clause to any appropriation bill 

decreasing state revenues or increasing the cost of state 

government in advance of the budget bill. The JFC acts upon agency 

requests for changes in their authorized position levels, as most 

of those positions are provided for through the biennial budget. 

Additionally, the JFC has many other statutory duties, which while 

not at issue in this case, are nonetheless instructive of how 
No. 2023AP2020-OA.akz

15

essential the JFC is.16 The JFC is one of several legislative 

committees, but given its role, it is an important one. Ever since 

its initial iteration in 1911, the JFC and its oversights have 

long provided guidance and checks on programs that have the 

potential for huge economic outlay. 

¶93 The decision of the court today, despite being limited 

to this particular program and based on separation of power 

principles, could be perceived as having broader impact on the way 

Wisconsin government has managed the power of the purse for over 

100 years. All three branches of government have functioned with 

the understanding that the JFC operates with authority to review 

certain spending and in fact, that review has been deemed 

constitutional by our court. The other branches of government 

have implicitly and explicitly approved such JFC review. If the 

 

16 The list of statutory sections implicated by the JFC's 

approval is non-exhaustive, and the JFC's reach is broad: The JFC 

is responsible for reviewing, submitting recommendations to, and 

advising and approving programs and monies in categories such as 

Natural Resources (the Program at issue here); Administration; 

Agriculture, Trade and Consumer Protection; Building Commission;

Child Abuse and Neglect Prevention Board; Children and Families; 

Corrections; Distance Learning Authorization Board; Educational 

Communications Board; Elections Commission; Employee Trust Funds; 

Financial Institutions; Health Services; Higher Educational Aids 

Board; Historical Society; Housing and Economic Development 

Authority; Insurance; Judicial Commission; Justice; Military 

Affairs; Public Instruction; Revenue; Safety and Professional 

Services; Tourism; Transportation; University of Wisconsin 

Hospitals and Clinics Authority; University of Wisconsin System; 

Wisconsin Aerospace Authority; Wisconsin Economic Development 

Corporation; Workforce Development, among other things. 

Additionally, many of these same agencies and boards are 

statutorily required to submit reports to, and appear before, the 

JFC. Joint Committee on Finance Informational Paper #78, 

Legislative Fiscal Bureau (Jan. 2021).
No. 2023AP2020-OA.akz

2

court is "declaring rights," it should consider how it might do so 

for the next budget cycle, as no other relief seems available for 

the past. Allowing the case to proceed in accordance with our 

standard practice and not rushing to judgment on this one issue, 

would have been the most practical way to give notice to the 

legislature of this groundbreaking change. Proceeding through the 

normal process, would more fairly have provided the legislature 

the ability to plan for the next budget cycle. Instead, they may 

be without any relief for certain past allocations that are no 

longer under their control. 

¶94 In short, I disagree with rushing to judgment, on this 

limited issue, taking this case out of turn. There is simply no 

need. 

¶95 As a result, I respectfully dissent.
No. 2023AP2020-OA.akz

1