How Two Recent Wisconsin Supreme Court Decisions Challenge The Power Of The State Executive Branch

Jul 15, 2020

Late last week, the Wisconsin Supreme Court announced its decisions on key cases concerning the power of the state’s executive branch. The rulings effectively limit the power of Wisconsin’s attorney general and overruled several of Gov. Tony Evers' vetoes from the 2019 state budget.

After the 2018 election, the Republican led Wisconsin Legislature passed a number of bills meant to limit the power of the incoming Democratic governor and attorney general. The state Supreme Court previously upheld the laws limiting the power of the governor. This recent decision limits the ability of the Wisconsin attorney general to work independently from the Legislature. 

The ruling allows the Legislature to take on cases that the attorney general refuses to take. It also requires the attorney general to get approval from the Legislature any time the attorney general's office is going to settle a case. 

"Introducing the Legislature and putting another barrier to settlement there is something that the AG's office has argued is going to fundamentally change what they do and how they can actually conduct themselves in office," says Paul Nolette, an associate professor and chair in the Department of Political Science at Marquette University. 

"The court upholding [the legislation] really creates a situation for the Wisconsin AG that no other AG in the country is really dealing with."

This desire to roll-back the attorney general's power comes as attorney generals across the country have taken on more responsibility and become more powerful over the past few years. Wisconsin is not the first state to give the Legislature the ability to take on cases, but it is the first state to require approval for settlements. 

"The court upholding [the legislation] really creates a situation for the Wisconsin AG that no other AG in the country is really dealing with," says Nolette. 

The Wisconsin Supreme Court's ruling also impacts the governor’s veto power — once considered the most powerful in the country.

"The thing that makes the Wisconsin governor even more powerful is that the governor has been able to veto not only lines or pages out of a bill but individual words and even numbers from bills," says Nolette.

The Legislature claimed that this power allowed the governor to fundamentally change the purpose of a bill through the veto. That argument was quite persuasive with the justices and is what allowed them to uphold the law that limits Evers' veto powers. 

What those powers will look like going forward was not handed down by the court. "It's actually not all that clear moving forward what the governor's power are when it comes to vetoes, just that it looks like there are going to be additional limitations," he says.