Governor Walker Has Another Constitutional Hurdle To Deal With


Following the news Tuesday one has to wonder if there was any thought given prior to pushing the legislative agenda for Wisconsin Governor Scott Walker to the matter of the constitutionality of the policy items.  From the flawed voter ID law to the most controversial collective bargaining law there has been a constant stream of court cases, and legal rulings that underscore a political problem for the Republicans.

Partisan over-reach may seem like a wonderful thing when the newness of having legislative majorities in each house, along with a freshly elected governor of the same party still hangs in the air.  But there is a price to be paid when the most partisan somehow are able to get their goals achieved.  As the past months have shown there needs to be some reasonable minds brought to the table in order to temper the partisanship and craft sensible legislation.

The latest embarrassment to Walker, which was also a needed victory for state residents, came Tuesday when  a portion of a law giving Walker veto powers over rules written by the state schools superintendent was struck down by a Dane County judge.

At the heart of the matter is a process question that was never sexy enough to get the needed coverage in the media during the time it was deliberated in 2011, but found traction when it was framed within a lawsuit concerning the Department of Public Instruction.

There was every reason to challenge the law that gave Walker the power to veto administrative rules written by any state agency.  That is a dreadful way for the executive to rule, and undermines the very balanced and thoughtful legislative rule-making process that has served the needs of the state for a very long time.  (I worked in the office of one of the co-chairs of JCRAR, and can attest to the fact the process was a respected and efficient way to deal with administrative rules.)

The process that I know to have worked consisted of administrative rules being crafted by state agencies and then sent to the legislative committees for review.  If there were problems hearings would be held, and a consensus on how to deal with them would be found.  But under this heavy-handed, control-it-from-the-top notion of govenment Walker can sign off on rules before sending them to the lawmakers.  That concentrates too much power in the hands of the executive.

Tuesday a judge handed down the first ruling on this matter, and it struck to the heart of the issue.

Circuit Judge Amy Smith ruled that the law violated the state constitution by giving Walker that power over the state Department of Public Instruction, which is headed by state schools Superintendent Tony Evers.

The constitution says that “the supervision of public instruction shall be vested in a state superintendent and such other officers as the Legislature shall direct.” In a 1996 decision referred to by Smith and the unions, the state Supreme Court held that lawmakers and the governor cannot give “equal or superior authority” over public education to any other official.

Finding taxpayer money to continually defend the actions of Walker and the Republican legislature in court is foolish.  Might I suggest a weekend conference for Walker and GOP legislators to have the constitution explained to them.  That seems more fiscally prudent.

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