Republican state lawmakers recently advanced bills that would strip power from both the incoming Democratic Gov. Tony Evers and Democratic Attorney General-elect Josh Kaul.
For one, the new bills would require a legislative committee rather than the attorney general to sign off on withdrawing from lawsuits. This would prevent Kaul from withdrawing from a national lawsuit that’s seeking to invalidate the Affordable Care Act.
READ: Wisconsin GOP Lawmakers Limit Incoming Democratic Gov. Tony Evers' Power
The legislation also makes it easier for lawmakers to get involved in litigation over state statutes, gives them power over spending settlement money and gets rid of the newly-formed solicitor general’s office.
Now, the legislation goes to outgoing Republican Gov. Scott Walker, who has indicated he plans to sign the bill into law.
Marquette Law professor Chad Oldfather explains the last-minute maneuver to shift power from the executive branch to the Legislature. He says separation of powers calls for three branches: executive, legislative and judicial.
"One would imagine it to be part of the executive power to oversee litigation undertaken on behalf of the State of Wisconsin," he says. "What the legislature here is trying to do is give itself a little bit more of a role in that process than has traditionally been the case."
Oldfather foresees litigation to challenge the legislature's actions. He says this could take two different forms, one of which is a challenge in federal court.
"The difficulty there is that, in general, United States constitutional law has afforded states a lot of flexibility in structuring their government," explains Oldfather. "There's not a lot of support in federal constitutional law for the idea that certain divisions of power within state government are required."
He doesn't think the likelihood of success of a challenge there is so great.
Through the state courts, the other avenue is to argue that what the legislature has done runs afoul of the Wisconsin Constitution.
"There, too, it's a little bit hard to say exactly how that might shake out," he says. "State constitutional law, particularly when it comes to things like separation of powers, doesn't tend to be an especially large body of law, so that you can't point to a lot of specific past cases for really specific guidance."
He says it's the type of case that would come before the Wisconsin Supreme Court. He continues that Wisconsin's highest court will have to consider what the Wisconsin Constitution requires and whether this is allocating power amongst the branches of government in a way that is not authorized by the state constitution.
He says there has been some litigation in other states about the division of powers between the legislature and the governor, but less so, to his knowledge, about the powers allocated to the attorney general. Also, he says that other states may not necessarily provide a template for Wisconsin.
"Because in Wisconsin, the powers of the attorney general are not, for the most part, derived from the state constitution, but rather from legislation," he says. "So, in other words, it's the Wisconsin Legislature that has the primary responsibility for saying 'here's what the attorney general's job is.' "
Oldfather says it seems like the bills' proponents will rely on that as an argument that the moves are constitutional.
He says the counter-argument would be "this is taking something that is traditionally within the purview of the executive branch and giving it to the legislature. So, yes, as a general matter, legislature, you have the authority to define the powers of the attorney general. But you can't take [powers] away to such an extent that you unduly undermine the ability of the executive branch to do its job as the executive."
