“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.
Daniel, as you know I am not a fan of textualist interpretations of the U.S. Constitution that attempt to vest unbounded authority in the Executive Branch of the federal government. Therefore, it will come as no surprise to you that I am similarly pre-disposed to reject a parallel textualist interpretation of the Wisconsin State Constitution, especially one that places broad powers in the hands of the Governor.
Among its many flaws, a purely textualist interpretive approach ignores history and de-values the political choices of a democratically elected legislature. The Progressive era, which counts among its early champions Theodore Roosevelt and Bob LaFollette, is often remembered for its social policies such as minimum wage laws and workplace safety regulations. However, equally important to the Progressives was the reform and re-making of the political process itself, in order to break the hold that a samll number of party bosses had seized on the workings of government.
The fundamental goal of Progressive political reforms, such as the direct public election of Senators, was to ensure that it was the voters that wielded the ultimate power of government rather than a select few insiders.
And then the Depression came. The growth of administrative agencies under Franklin Roosevelt was accomplished by congressional legislators who approved of greater federal initiative but who also sought to prevent the accumulation of unchecked executive power. Many (but not all) federal agencies were designed to be independent of the President so that these agenices could focus on their statutory objectives free from political interference.
It is not surprising that the Wisconsin legislature, with strong roots in the Progressive Movement and long associated with “clean goverment” principles, has historically adopted statutes that create both independent state-wide offices and independent agencies that are free from control by the Governor. In so doing, these legislators sought to advance a political system in our state that kept any one person from accumulating too much power and that reflected reforms popular with the voting public.
I am sure that Governor Walker finds these laws inconvenient, but there is nothing in the Wisconsin Constitution that precludes the legislature from adopting them and, in fact, much history indicating that the voters of Wisconsin wanted them. If the Governor believes that these “good government” provisions have outlived their usefulness, then he is free to ask the legislature to repeal them.
I would caution against applying legal doctrines that are designed to limit the powers of Congress (which is a body of enumerated powers) in novel ways that seem designed to limit the power of the Wisconsin Legslature (which is a body vested with broad police powers). The textualist box that some members of the U.S. Supreme Court have tried to build around Congress simply cannot be used to cabin state legislatures.
I would also caution against adopting legal doctrines that undermine the ability of the voters to choose the type of political process and the type of government that they desire. The purpose of our constitutions, both federal and state, is to allow the people to govern ourselves. This requires more than the bare right to vote for a candidate every four years. This requires an ability to subject elected officials to laws that dictate how they must perform their jobs.
After all, it is the people of Wisconsin who are the ultimate sovereigns, not the Governor.
Two thoughts, Prof. Fallone.
1) “Among its many flaws, a purely textualist interpretive approach ignores history and de-values the political choices of a democratically elected legislature.”
I thought the most important feature of a constitution like ours is to limit the choices of a democratically elected legislature?
2) Regardless of that, I don’t see a substantial difference between having the sovereign electorate pick a legislature that decides how agencies are run and having the sovereign electorate pick a governor who decides how agencies are run. Neither is less answerable to the electorate, so shouldn’t that choice rest with the branch that is actually supposed to be in charge of enforcement of the laws that the legislature passes?
Tom, of course one of the purposes of a written constitution is to limit the choices available to the lawmakers. However, the point I am trying to make is that our federal lawmaker (Congress) must point to an enumerated power before it can pass a law. There is no such limit on the power of our state lawmaker.
Daniel’s post is interesting because he is suggesting that we should importat textualist arguments that Congress has exceeded its delegated authority — arguments that support a “limited government” political philosophy — into our understanding of state government. I don’t see the two types of government as equivalents, however. At the state level, the voters may choose to elect lawmakers who espouse a “limited government” view, but the state constitution certainly does not prevent the voters from choosing differently and electing lawmakers who take a more progressive view.
I also disagree with the idea that it makes no difference which branch of the state government exercises control over administrative agencies. An agency is independent when it must comply with laws of general applicability passed by the legislature, but otherwise is free to make particular policy decisions on its own. If the legislature is upset by those decisions, then it can countermand them via after-the-fact legislation but the legislature cannot micromanage the agency. The Governor, on the other hand, can dictate every detail of what happens in agencies that answer to his office. That does not satisfy the definition of “independent.”
It is fine to believe that the existence of independent agencies is a bad idea as a matter of general policy. But it is wrong to argue that the state constitution prevents lawmakers from believing that independent agenices are a good thing, and from choosing to create administrative bodies that are shielded from executive interference. The state constitution does not take this choice off of the table.
Prof. Fallone and Tom — Thanks for your thoughtful comments on this post. Professor, I’m happy to see you agree with the idea that Congress must operate within the limited zone enumerated by the Constitution. Perhaps you also agree that inactivity by its very nature cannot be commerce? 😉
Professor, you write that “there is nothing in the Wisconsin Constitution that precludes the legislature from adopting… independent agencies that are free from control by the governor.” Actually, I think there is something: the Constitution’s system of three branches. Every government entity must fall within one branch — there is no catch-all for “other,” and only the Governor is constitutionally charged to “take care that the laws be faithfully executed.”
Finally, I’m initially skeptical that your distinction between Congress’ enumerated powers and the Legislature’s police powers impacts this discussion. These rules regulate the subjects which each government may regulate — Congress may regulate international trade, intellectual property, and the naturalization of new citizens, for instance. The Legislature may regulate health, welfare, safety, and morals. But I wouldn’t think the scope of the subjects of law-making changes the types of agencies the legislature may create to carry out those laws.
Oh, and by the way, the purpose of our constitutions is to secure the blessings of liberty 🙂
Daniel:
The perspective that your bring to the interpretation of state constitutions is interesting, and while I still believe that the existence of broad state police powers limits the equivalencies that you draw between state and federal constitutions, I nonetheless agree with you that this is a topic worthy of examination and discussion. Also, I like the emoticons.