There is a line here between rules to implement policies enacted by an elected body and rules that create new policy. I do not think that unelected bureaucrats should be creating new policy.
In a case stemming from several children not being able to play indoor sports because of Dane County’s emergency health orders, the Wisconsin Supreme Court is weighing whether to modify an elected body’s ability to hand over authority to an executive agency.
A conservative law firm representing Dane County plaintiffs and defendant Dane County have until Feb. 1 to tell the Supreme Court whether they want it to reconsider and modify current precedents on the “nondelegation doctrine,” or the idea that elected legislative bodies cannot pass the buck on decision-making to non-elected agencies and bureaucrats in most cases.
The doctrine became a focus of conservative groups around the country after the pandemic began, as a means to center power in Republican legislatures. Republicans in Wisconsin, spurred by business interests leery of government regulations, have for years tried to rein in the state’s executive branch agencies by revising the state’s rule-making process.
If the Supreme Court agrees with the plaintiffs, city and county elected officials would have to vote on public health policy changes rather than delegate that power to health officials. On a statewide level, more power would rest with the Republican Legislature if the Supreme Court decides executive agencies have too much rulemaking authority.
“It is our position that the legislature ought not delegate major or significant policy questions to the executive branch or administrative agencies,” WILL president and general counsel Rick Esenberg said in a statement. “This violates the separation of powers which mandates that the legislature makes the law and the executive administers it.”