“The executive power shall be vested in a governor” proclaims Article V, Section 1 of the Wisconsin Constitution. Over the course of the past two decades, there has been a tremendous amount of legal scholarship about the “unitary executive theory,” based on the executive vesting clause of Article 3, Section 1 of the U.S. Constitution: “The executive Power shall be vested in a President of the United States of America.” Thus far, this scholarship and its accompanying cases (see especially Justice Scalia’s dissent in Morrison v. Olson) has focused entirely on the presidency, but the legal principles are virtually identical.
All of this bears on two recent news stories: first, regarding Governor Walker’s bill requiring executive review of administrative rulemaking, and second, the budget repair bill’s adjustment of several positions in the executive branch from civil service to gubernatorial appointment. The February bill on administrative rules requires that all regulations from state agencies be reviewed by the governor’s office before entering into force. Democrats opposed this bill on the grounds that it violates the “separation of powers,” the proper relationship between the executive, legislative, and judicial branches. State Senator Lena Taylor objected that the bill “breaks down the wall of independence around independent agencies.” More recently, this week Democrats slammed the budget repair bill’s reclassification of several positions from civil service to gubernatorial appointment.
For instance, Assembly Minority Leader Peter Barca issued a release focused on the bill’s reclassification of the legal counsel at the Wisconsin Employment Relations Commission – the release characterized WERC as an “impartial,” “independent,” and “nonpartisan agency” at various points. The release closes with a quote attacking “self-declared CEO Walker.” The Journal Sentinel and Wisconsin Outdoor News also ran stories criticizing the “politicization” of these top positions at state agencies: chief legal counsel, spokesman, and legislative liaison.
The Wisconsin Constitution only creates three branches of government – legislative, judicial, and executive. There is no fourth branch called “independent agencies.” All executive power resides in the Governor (there are interesting wrinkles on the state level with elected cabinet officers, something that doesn’t exist at the federal level). The governor IS the CEO of Wisconsin government. And all officials in executive agencies are responsible for implementing the agenda which the people of Wisconsin elected the governor to advance.
It especially makes sense that policy-making and advocacy positions like legal counsel, spokesman, and legislative liaison are personally in line with the Governor’s policy agenda. The Governor’s executive power is specified in the Constitution – the civil service and independent agencies are nowhere to be found in that document.