On July 8, 2025, the Wisconsin Supreme Court held in Evers, et al., v. Marklein, et al., that statutory provisions granting the Joint Committee for Review of Administrative Rules (JCRAR) authority to pause, object to, and suspend administrative rules violate the Wisconsin Constitution’s bicameralism and presentment requirements.
The majority opinion, authored by Chief Justice Karofsky, and joined by Justices Ann Walsh Bradley, Dallet, and Protasiewicz, held that the JCRAR’s authority to alter the rulemaking process impacted the legal rights and duties of individuals outside the legislative branch, and thus triggered constitutional requirements that a bill pass both houses (bicameralism) and be presented to the Governor for signature (presentment). By failing to comply with those requirements, the JCRAR statutes were held facially unconstitutional.
The decision impacts the way in which administrative rules are promulgated in Wisconsin. Historically, rules were promulgated as follows:
- Agency drafts a scope statement for a proposed rule.
- Agency presents the scope statement to the Governor for approval.
- Agency conducts an economic impact analysis.
- Legislative council staff reviews the proposed rule.
- Proposed rule undergoes public hearing and comment.
- Agency submits the final proposed rule to the Governor for signature.
- Agency sends the proposed rule to chief clerk of each house of legislature which is reviewed by standing committees.
- When committee’s jurisdiction over the proposed rule is over, the clerks then refer the proposed rule to the JCRAR.
The JCRAR is a legislative committee that participates in this rulemaking process. The JCRAR was established in 1966. JCRAR’s authority expanded over the years, eventually being permitted to suspend a rule after that rule was promulgated. JCRAR’s authority allowed a small subset of legislators to pause and suspend agency rules.
At issue in this case were five statutes granting JCRAR select authority:
- Pre-promulgation pause. Wis. Stat. § 227.19(5)(c).
JCRAR had authority to review all administrative rules prior to implementation. Agencies may not promulgate proposed rules until after JCRAR reviewed, establishing a minimum review period of 30 days.
- Objection. Wis. Stat. § 227.19(5)(d).
JCRAR had authority to object to any proposed rule for select reasons, and indefinitely block proposed rules unless the legislature acted.
- Indefinite objection. Wis. Stat. § 227.19(5)(dm).
JCRAR could issue an indefinite objection to the proposed rule preventing the agency from promulgating the rule unless the legislature passed a bill to enact the rule.
- Suspension. Wis. Stat. § 227.26(2)(d).
JCRAR could suspend a rule after it was promulgated.
- Multiple suspensions. Wis. Stat. § 227.26(2)(im).
JCRAR could suspend a rule multiple times even after it was promulgated.
Before the Court in this decision were two administrative rules. The first was an administrative rule banning conversion therapy by licensed professionals under the Marriage and Family Therapy, Professional Counseling, and Social Work Examining Board. The second rule was an update to the Wisconsin Commercial Building Code.
The Governor argued that the JCRAR statutes at issue violate the Wisconsin Constitution’s requirements of bicameralism and presentment. In other words, Evers argued that the Constitution required a law be passed in both houses then presented to the Governor. Evers thus requested that these rules be determined legislative action that is subject to the legislative procedures.
In contrast, the legislature argued that JCRAR’s suspension powers are constitutional because rulemaking suspensions are different than legislative action and thus do not need to pass both houses nor be presented to the Governor.
Relying on Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983) in which the Supreme Court of the United States held bicameralism and presentment are required where legislative action alters legal rights and duties of individuals outside the legislature, the majority opinion determined that the JCRAR’s authority to pause, object to, and suspend rules violates these constitutional requirements intended to safeguard the separation of powers. The JCRAR thus no longer has authority to pause, object to, or suspend rules pursuant to these provisions.
Justice Hagedorn issued an opinion, concurring and dissenting in part, finding that the decision should have been issued on narrow grounds: only JCRAR’s authority to issue an indefinite objection should have been held unconstitutional as applied to the Commercial Building Code rule. Justices Ziegler and Rebecca Bradley issued separate dissenting opinions, challenging the majority’s narrowing of legislative authority while expanding that of the executive.
By requiring that intervention in rulemaking be done through the full legislative process, agency rulemaking will be subject to less legislative oversight. This decision may further expedite the rulemaking process as a result of limiting the role of the JCRAR.
Our Regulatory Team at Michael Best is here to help advise you on the impacts of this decision on your project or property. If you have questions about how this ruling may affect your business, please contact your Michael Best attorney or a member of our team listed on this alert.