                                                                          2019 WI 76

                  SUPREME COURT                  OF     WISCONSIN
CASE NO.:                2017AP2278-OA
COMPLETE TITLE:          Kristi Koschkee, Amy Rosno, Christopher
                         Martinson and Mary Carney,
                                   Petitioners,
                              v.
                         Carolyn Stanford Taylor, in her official
                         capacity as Wisconsin Superintendent of Public
                         Instruction and Wisconsin Department of Public
                         Instruction,
                                   Respondents.

                                                ORIGINAL ACTION

OPINION FILED:           June 25, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           April 10, 2019

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:            R.G. BRADLEY, J., concurs (opinion filed).
                         KELLY, J., concurs (opinion filed).
  DISSENTED:             A.W. BRADLEY, J., dissents, joined by DALLET,
                         J., (opinion filed).
  NOT PARTICIPATING:     ABRAHAMSON, J., withdrew from participation.

ATTORNEYS:


       For the petitioners, there were briefs filed by Richard M.
Esenberg, Brian McGrath, CJ Szafir, and Wisconsin Institute For
Law & Liberty, Milwaukee. There was an oral argument by Richard
M. Esenberg.


       For      the    respondents,     there     was   a    brief   filed   by   Ryan
Nilsestuen,           Benjamin    R.   Jones,    and    Wisconsin    Department     of
Public       Instruction,        Madison.   There      was   an   oral   argument   by
Lester A. Pines and Pines Bach LLP, Madison.
       An amicus curiae brief was filed on behalf of Wisconsin
Association of School Boards, Inc., and the Wisconsin School
Administrators’ Alliance, Inc., by Michael J. Julka, Richard F.
Verstegen, M. Tess O’Brien-Heinzen, and Wisconsin Association of
School Boards, Inc. and School Administrators’ Alliance, Inc.,
Madison. There was an oral argument by Richard F. Verstegen.


       An amicus curiae brief was filed on behalf of Peggy Coyne,
Mary   Bell,   Mark   W.   Taylor,   Corey   Otis,   Marie   Stangel,   Jane
Weidner, and Kristin A. Voss, by Lester A. Pines and Pines Bach
LLP, Madison. With whom on the brief was Christina M. Ripley and
Wisconsin Education Association Council, Madison. There was an
oral argument by Jeffrey A. Mandell and Stafford Rosenbaum LLP,
Madison.




                                      2
                                                                2019 WI 76
                                                        NOTICE
                                          This opinion is subject to further
                                          editing and modification.   The final
                                          version will appear in the bound
                                          volume of the official reports.
No.   2017AP2278-OA


STATE OF WISCONSIN                    :            IN SUPREME COURT

Kristi Koschkee, Amy Rosno, Christopher
Martinson and Mary Carney,

           Petitioners,

      v.                                                     FILED
Carolyn Stanford Taylor, in her official                JUN 25, 2019
capacity as Wisconsin Superintendent of Public
Instruction and Wisconsin Department of Public             Sheila T. Reiff
Instruction,                                            Clerk of Supreme Court


           Respondents.




      ORIGINAL ACTION for declaratory judgment.          Declaration of
rights; relief granted.


      ¶1   PATIENCE DRAKE ROGGENSACK, C.J.       This is an original
action brought by Kristi Koschkee et al., two licensed teachers
and two school board members, against Superintendent of Public
Instruction (SPI) Carolyn Stanford Taylor and the Department of
Public Instruction (DPI).    The petitioners argue that the SPI
and DPI must comply with the statutory requirement that, prior
to drafting or promulgating an administrative rule, they must
                                                                                No.        2017AP2278-OA



receive written approval from the governor.1                                 The SPI and DPI
argue       that       this        requirement        of     gubernatorial            approval       is
unconstitutional              as    applied    to     the       SPI    because,        pursuant      to
Article X, Section 1 of the Wisconsin Constitution, no other
officer may be placed in a position equal or superior to that of
the SPI with regard to the "supervision of public instruction."
       ¶2        We      conclude          that        the       gubernatorial                approval
requirement for rulemaking is constitutional as applied to the
SPI and DPI, whether such approval authority is found in 2017
Wis. Act 57 or in previous provisions of ch. 227.                                          Article X,
Section 1 vests supervision of public instruction, an executive
function, in the SPI.                     In contrast, when the SPI, through the

DPI, promulgates rules, it is exercising legislative power that
comes       not       from    the     constitution         but        from   the      legislature.
Stated       otherwise,             the    legislature          delegates          part        of    its
constitutional           power to legislate                to    the     SPI,    DPI,        and    many
other agencies in the form of rulemaking power.                                       That the SPI
also       has    the    executive         constitutional             function        to     supervise


       1
       The   legislature   imposed  this   requirement  on   all
administrative agencies in 2011 with the passage of 2011
Wis. Act 21. The petitioners initially argued that they sought
to force the SPI and DPI to comply with the Regulations from the
Executive in Need of Scrutiny Act, 2017 Wis. Act 57 (REINS Act)
which introduced the requirements that (1) agencies submit scope
statements to the Department of Administration (DOA), and
(2) hold a public comment and hearing period on proposed rules.
The petitioners later conceded that the SPI and DPI complied
with these two requirements, and that their challenge was based
on   the   constitutionality   of  the   gubernatorial  approval
requirement as applied to the SPI and DPI.


                                                  2
                                                               No.   2017AP2278-OA



public instruction does not transform the SPI's legislatively
delegated     rulemaking    power   into      a   constitutional     supervisory
function.      Therefore, it is of no constitutional concern that
the governor is given equal or greater legislative authority
than the SPI in rulemaking.
                              I.    BACKGROUND
       ¶3    2011 Wis. Act 21 (Act 21) amended sections of Wis.
Stat. ch. 227 (2009-10), the Wisconsin Administrative Procedure
Act.       Prior to the passage of Act 21, an agency2 planning to
draft an administrative rule submitted a "statement of scope" to
the Legislative Reference Bureau (LRB) for publication, and to
the    "individual   or    body   with       policy-making    powers    over   the

subject matter of a proposed rule" for approval.                       Wis. Stat.
§ 227.135(2) (2009-10).           A scope statement describes the rule
and its objectives, the statutory authority for promulgating the
rule, the time and resources required to develop the rule, the
entities      affected,     and     a    summary      of     relevant     federal
regulations.      Wis. Stat. § 227.135(1)(a)-(f) (2017-18).3                After

submitting the scope statement, the agency drafted the proposed



       2
       "Agency" is defined broadly.     An agency is "a board,
commission, committee, department or officer in the state
government, except the governor, a district attorney or a
military or judicial officer." Wis. Stat. § 227.01(1). The SPI
meets this description, and is therefore also considered an
"agency" within the meaning of ch. 227.
       3
       All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.


                                         3
                                                                  No.   2017AP2278-OA



rule and submitted it to the legislature for review.                     Wis. Stat.
§§ 227.135-.19 (2009-10).
      ¶4    Act 21 altered this procedure.                   Act 21 required an
agency first to submit its scope statement to the governor for
approval;       agencies    were    prohibited       from    submitting    a     scope
statement to the LRB until the governor issued a written notice
of   approval.       An    agency    could     not   "perform     any   activity    in
connection with the drafting of a proposed rule . . . until the
governor and the individual or body with policy-making powers
over the subject matter of the proposed rule approve[d]."                         Wis.
Stat. § 227.135(2).          Additionally, rather than submitting final
drafts     of    proposed    rules     directly       to    the   legislature      for

approval, agencies were required first to submit final drafts of
proposed     rules   to     the     governor    for    approval.        Wis.     Stat.
§ 227.185.        The proposed rule could not be submitted to the
legislature for approval unless and until the governor again
approved the rule in writing.           Id.

      ¶5    We reviewed these gubernatorial approval requirements
in Coyne v. Walker, 2016 WI 38, ¶6, 368 Wis. 2d 444, 879 N.W.2d
520, and decided that they were "void as applied to the [SPI]
and his subordinates."            Id., ¶4.      There was no majority opinion
in Coyne.       Our mandate resulted from a one-justice lead opinion,
a two-justice concurrence, and a one-justice concurrence, all of
which agreed only on the outcome of the case.
      ¶6    In     2017,     the     Wisconsin        legislature       passed     the
Regulations from the Executive in Need of Scrutiny Act, 2017
Wis. Act 57 (REINS Act).             The REINS Act added the requirement
                                         4
                                                                      No.    2017AP2278-OA



that       agencies      submit    scope     statements    to     the    Department    of
Administration (DOA), which determines whether the agency has
authority to promulgate the rule.                 REINS Act, § 3.           The DOA also
makes a non-binding recommendation to the governor.                            REINS Act,
§ 3.        The REINS Act required agencies to hold a preliminary
public hearing and comment period on the scope statement at the
request of a co-chairperson of the Joint Committee on Review of
Administrative Rules (JCROR).                REINS Act, § 5.
       ¶7      The REINS Act did not alter Act 21's requirement that
an agency (1) submit a statement of scope to the governor for
approval prior to drafting a proposed rule, and (2) submit a
final      draft    of    a   rule    to   the    governor      for   approval     before

submitting it to the legislature.
       ¶8      The petitioners conceded at oral argument that the SPI
and    DPI    had     submitted      scope    statements     to    the   DOA    and   held
preliminary public hearings and comment periods upon request.
However, the petitioners assert that the REINS Act "variously
amends and reenacts parts of a comprehensive statutory scheme"

and that their challenge therefore encompasses the "full suite
of requirements" of ch. 227.4                The petitioners ask us to overrule
Coyne's mandate and hold that the SPI and DPI must comply with
the    "full    suite      of     requirements"     of    ch.     227,   including    the
requirement         for    written     gubernatorial         approval       both   before
drafting a proposed rule and before submitting a final draft of


       4   Petitioner's Reply Br. at 3.


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                                                            No.   2017AP2278-OA



a proposed rule to the legislature.            We accepted the petition
for original action, and now conclude that the requirement that
agencies   receive   gubernatorial       approval   prior    to   drafting   a
proposed rule and again before submitting it to the legislature
for approval is constitutional as applied to the SPI and DPI.
Accordingly, we overrule our prior decision in Coyne v. Walker,

368 Wis. 2d 444.5




     5 Because our decision in Coyne v. Walker, 2016 WI 38, 368
Wis. 2d 444, 879 N.W.2d 520 addressed some of the same statutory
provisions and constitutional concerns we examine today, we
consider whether the doctrine of stare decisis should be
employed in the case before us.      Progressive N. Ins. Co. v.
Romanshek, 2005 WI 67, ¶41, 281 Wis. 2d 300, 697 N.W.2d 417.

     Stare decisis is a principle of policy that can add
certainty to the law.    State v. Denny, 2017 WI 17, ¶71, 373
Wis. 2d 390, 891 N.W.2d 144.   However, stare decisis does not
require us to retain constitutional interpretations that were
objectively wrong when made.   See Wenke v. Gehl Co., 2004 WI
103, ¶21, 274 Wis. 2d 220, 682 N.W.2d 405. This is so because
such interpretations are unsound in principle.       State v.
Luedtke, 2015 WI 42, ¶40, 362 Wis. 2d 1, 863 N.W.2d 592
(citations omitted).

     Furthermore, our mandate in Coyne arises from a lead
opinion, joined by one justice, a two-justice concurrence, and a
one-justice concurrence.    When we are asked to overturn one of
our prior decisions, lead opinions that have no common legal
rationale with their concurrences are troublesome. For example,
we cannot analyze whether "[c]hanges or developments in the law
have undermined the rationale behind a decision," Luedtke, 362
Wis. 2d 1, ¶40, if there is no "rationale" to analyze.    We are
in   such  a   circumstance   in   the  matter  now  before  us.
Accordingly, for the reasons set forth below, we conclude that
an independent analysis of the issues presented herein better
serves the interests of the public.


                                     6
                                                                         No.    2017AP2278-OA



                                     II.     DISCUSSION
                               A.     Standard of Review
      ¶9    We are required to interpret Article X, Section 1 in
order to decide the pending controversy.                              Interpretations of
provisions        of    the         Wisconsin         Constitution          present        legal
questions.        Custodian of Records for the LTSB v. State, 2004 WI

65,   ¶6,   272     Wis. 2d         208,    680       N.W.2d 792.        This      case     also
requires     us    to       apply    a     statute.            The    interpretation         and
application       of    a    statute       to     a    given    set    of    facts     present
questions of law as well.                   Marder v. Bd. of Regents of Univ.
Wis. Sys., 2005 WI 159, ¶19, 286 Wis. 2d 252, 706 N.W.2d 110.
                              B.     Rulemaking Authority

      ¶10   The Wisconsin Constitution establishes three separate
branches    of     government,           with   "no     branch       subordinate       to   the
other, no branch to arrogate to itself control over the other
except as is provided by the constitution, and no branch to
exercise the power committed by the constitution to another."
State ex rel. Friedrich v. Dane Cty. Cir. Ct., 192 Wis. 2d 1,
13, 531 N.W.2d 32 (1995) (citation omitted).                           Legislative power
is vested in a senate and assembly, executive power is vested in
a governor, and judicial power is vested in a unified court
system.     Wis. Const. art. IV, V, VII.
      ¶11   "Legislative            power,      as     distinguished        from   executive
power, is the authority to make laws, but not to enforce them."
Schuette v. Van De Hey, 205 Wis. 2d 475, 480-81, 556 N.W.2d 127
(Ct. App. 1996).            Powers         constitutionally            vested         in    the
legislature       include      the    powers:         "'to     declare      whether    or    not
                                                7
                                                                No.      2017AP2278-OA



there shall be a law; to determine the general purpose or policy
to be achieved by the law; [and] to fix the limits within which
the law shall operate.'"             See, e.g., Schmidt v. Dep't of Res.

Dev., 39 Wis. 2d 46, 59, 158 N.W.2d 306 (1968) (quoting State ex
rel. Wis. Inspection Bureau v. Whitman, 196 Wis. 472, 505 220
N.W. 929 (1928)).
       ¶12   A   "rule"   is    "a   regulation,       standard,      statement    of
policy, or general order of general application that has the
force of law and that is issued by an agency to implement,
interpret, or make specific legislation enforced or administered
by the agency or to govern the organization or procedure of the
agency."          Wis.    Stat.        § 227.01(13).           Therefore,        when

administrative     agencies     promulgate      rules, they        are    exercising
legislative power that the legislature has chosen to delegate to
them   by    statute.     See    id.    at    505-06    (the   legislature       "may
delegate to administrative agencies the authority to exercise
such legislative power as is necessary to carry into effect the
general legislative purpose . . . .               It [] leads to confusion
and error to say that the power to fill up the details and
promulgate rules and regulations is not legislative power.");
Brown Cty. v. DHFS, 103 Wis. 2d 37, 43, 307 N.W.2d 247 (1981)
("Where the legislature has set forth the 'fundamentals of a
law, it may delegate to administrative agencies the authority to
exercise such legislative power as is necessary to carry into
effect the general legislative purpose.'") (citations omitted).
       ¶13   From time to time, the legislature has used its power
to create administrative agencies, such as the Department of
                                          8
                                                                           No.    2017AP2278-OA



Health Services and the Department of Financial Institutions,
and to delegate to agencies certain legislative powers.                                            The
legislature created DPI in 1967.                   Wis. Stat. § 15.37 (1967).
       ¶14    Agencies are considered part of the executive branch.
Citizens Concerned for Cranes and Doves v. DNR, 2004 WI 40, ¶14,

270 Wis. 2d 318, 677 N.W.2d 612.                            They possess "'only those
powers [that] are expressly conferred or [that] are necessarily
implied by the statutes under which [they] operate[].'"                                        See,
e.g., Kimberly-Clark Corp. v. Pub. Serv. Comm'n, 110 Wis. 2d
455,     461-62,         329    N.W.2d      143        (1983).          The      DPI     is        the
administrative agency responsible for promulgating rules related
to     public      instruction,       and    acts           "under   the      direction            and

supervision of the [SPI]."               Wis. Stat. § 15.37.
       ¶15    The powers delegated to administrative agencies by the
legislature include the power to promulgate rules within the
boundaries of enabling statutes passed by the legislature.                                         See
Wis.    Stat.      § 227.11(2)(a)         ("Each       agency     may    promulgate           rules
interpreting         the       provisions         of        any   statute        enforced           or
administered by the agency, if the agency considers it necessary
to effectuate the purpose of the statute, but a rule is not
valid        if     the        rule      exceeds            the   bounds         of      correct
interpretation."); State ex rel. Castaneda v. Welch, 2007 WI
103, ¶26, 303 Wis. 2d 570, 735 N.W.2d 131.
       ¶16    In     Wis.        Stat.      § 227.19(1)(b),              the      legislature
explained         that    its     delegation           of     legislative        power        is     a
recognition of "the need for efficient administration of public
policy," and it also outlined reservations of that delegation.
                                              9
                                                                  No.   2017AP2278-OA



Accordingly,        in    its     general        rulemaking      delegation,       the
legislature "reserves to itself" all of the following:

            1. The right to retract any delegation of rule-
       making authority.

            2. The right to establish any aspect of general
       policy by legislation, notwithstanding any delegation
       of rule-making authority.

            3. The right and responsibility to designate the
       method for rule promulgation, review and modification.

            4. The    right   to    delay or suspend the
       implementation of any rule or proposed rule while
       under review by the legislature.
§ 227.19 (1)(b)1.-4.
       ¶17    We have long recognized that "the delegation of the
power to make rules and effectively administer a given policy is
a      necessary     ingredient        of        an   efficiently       functioning
government."        Gilbert v. Med. Examining Bd., 119 Wis. 2d 168,
184, 349 N.W.2d 68 (1984); see also Schmidt, 39 Wis. 2d at 58
("[O]ur      government   could      not    efficiently      operate    without    the
administrator and administrative agency.").                    The administration
of state government is complex.                  For example, "[t]he Wisconsin
Administrative Code is more than 11,000 pages long with just
under    1,800     chapters     of   regulations      that     affect   businesses,
local    governments,      licensed        professionals,      and   consumers     and
touch[es] virtually every industry in Wisconsin."                        See, e.g.,

Jodi    E.   Jensen,     Regulatory        Reform:    Moving    Policymaking      from
State Agencies to the Legislature, 91 Wis. Law. 24, 25 (Oct.
2018).



                                            10
                                                                      No.    2017AP2278-OA



      ¶18    However, while the breadth of government legislation
has   resulted        in    some    delegation       of     legislative        power      to
agencies, such agencies remain subordinate to the legislature
with regard to their rulemaking authority.                        Stated otherwise,
agencies "ha[ve] no inherent constitutional authority to make
rules,      and,    furthermore,         [their]    rule-making        powers      can    be
repealed by the legislature."                 Martinez v. DILHR, 165 Wis. 2d

687, 698, 478 N.W.2d 582 (1992); Wis. Stat. § 227.19(1)(b)1.
      ¶19    In     addition,      the    case     before   us    does      not    present
issues that should give rise to a dogmatic exposition on the
merits, or lack thereof, of administrative agencies.                          Rather, we
are asked to determine the extent to which the legislature can

change a past delegation of rulemaking authority when the SPI's
rulemaking is affected.
      ¶20    Legislative        change      and     control      of   rulemaking         are
within the constitutional power of the legislature.                            Martinez,
165 Wis. 2d at 698.            As we have explained, an agency's "'powers,
duties and scope of authority are fixed and circumscribed by the
legislature and subject to legislative change.'"                            Id. (quoting
Schmidt, 39 Wis. 2d at 56).                 Because the legislature has the
authority     to     take   away    an    administrative      agency's        rulemaking
authority completely, it follows that the legislature may place
limitations and conditions on an agency's exercise of rulemaking
authority,         including     establishing        the    procedures        by     which
agencies may promulgate rules.                    The legislature may therefore
retract      or     limit    any    delegation       of     rulemaking        authority,
determine the methods by which agencies must promulgate rules,
                                            11
                                                                          No.     2017AP2278-OA



and    review     rules       prior        to    implementation.                  Wis.      Stat.
§ 227.19(1)(b)1.-4.;          see,     e.g.,         Wis.    Realtors          Ass'n   v.   Pub.

Serv. Comm'n, 2015 WI 63, ¶23, 363 Wis. 2d 430, 867 N.W.2d 364.
      ¶21   After the enactment of Act 21, agencies must first
submit scope statements to the governor for approval; agencies
may not submit scope statements to the LRB, or begin drafting
any proposed rule, "until the governor issues a written notice
of    approval    of    the    statement."                  Wis.    Stat.       § 227.135(2).
Additionally, rather than submit final drafts of proposed rules
directly to the legislature for approval, agencies must first
submit   final    drafts       of     proposed        rules        to    the    governor       for
approval.       Wis. Stat. § 227.185.                  A proposed rule may not be

submitted to the legislature without a second approval of the
governor.         § 227.185.               Act        21     therefore          altered        the
legislature's     delegation          of    rulemaking           power     to    agencies       by
allowing the governor to block a proposed rule at two separate
stages of the rulemaking process.
                   C.     SPI's Constitutional Authority
      ¶22   The   constitutional            genesis         of     the   SPI     is    found   in
Article X, Section 1, which provides:

      The supervision of public instruction shall be vested
      in a state superintendent and such other officers as
      the    legislature    shall    direct;    and    their
      qualifications, powers, duties and compensation shall
      be prescribed by law. The state superintendent shall
      be chosen by the qualified electors of the state at
      the same time and in the same manner as members of the
      supreme court, and shall hold office for 4 years from
      the succeeding first Monday in July.      The term of
      office, time and manner of electing or appointing all


                                                12
                                                                                No.     2017AP2278-OA


       other officers of supervision                         of public instruction
       shall be fixed by law.
Wis. Const. art. X, § 1.                     Article X, Section 1 does not define
the term "supervision."
       ¶23     When we interpret an undefined constitutional term we
examine        the       common    law        as   it       existed       at     the       time     the
constitutional provision was enacted, the constitutional debates
that bore on the undefined term, the plain meaning of the term
at the time the constitutional provision was adopted, and the

earliest interpretation in laws passed shortly after adoption of
the constitutional provision or our opinions that interpreted
the provision.             See Polk Cty. v. State Pub. Def., 188 Wis. 2d

665,    674,       524    N.W.2d       389    (1994)        (citing      State    v.       Beno,    116
Wis. 2d 122, 136-38, 341 N.W.2d 668 (1984)).
       ¶24     Our examination of the common law functions of the SPI
at     statehood          provides           no    guidance,            because       an      officer
responsible for public education did not exist prior to 1848.
Therefore,         Article        X,    Section         1   did    not     "incorporate[]           an
ancient common law office, possessing defined powers and duties,
into the constitution.                   Public instruction and its governance
had     no    long-standing            common      law       history       at     the      time    the
Wisconsin Constitution was enacted."                             Fortney v. Sch. Dist. of
West Salem, 108 Wis. 2d 167, 182, 321 N.W.2d 225 (1982).
       ¶25     However,       an       examination          of    the     plain       language      of
Article X, Section 1, the Constitutional Conventions of 1846 and
1848,        and     early    cases          and   statutes         addressing          the       SPI's
supervisory          authority         demonstrates              that    supervision          is     an


                                                   13
                                                                 No.    2017AP2278-OA



executive    function.        "Stated     otherwise,       the   framers      of   the
Constitution chose no specific duties for the [SPI] in regard to
'supervision of public instruction.'"                Coyne, 368 Wis. 2d 444,

¶185 (Roggensack, C.J., dissenting).                Rather, powers and duties
of the SPI were prescribed by law.                   Id., ¶143 (Prosser, J.
concurring).
     ¶26    Furthermore,      the   debates     during     the   18466       and   1848
constitutional conventions surrounding the creation of the SPI
confirm    this plain-meaning       interpretation of "supervision"                 as
executive authority.        Delegate Marshall M. Strong, for example,
thought    the SPI should       "travel over        the    state,      organize the
system,     and    awaken     people    to    the    importance         of    [public

education]."        Journal    of   the      Convention,     reprinted        in   The
Convention of 1846, 569 (Milo M. Quaife, ed., 1919).                          Another
delegate, Wallace W. Graham, thought "there could be no uniform
system"     of    public    education     without     an     SPI,      because     the
legislature needed to receive "an annual report of the state of
schools throughout the state" from "a man whose entire business
it is to visit and know all of the schools."                           Id. at 568.
Others disagreed and thought "the duties for a time might be


     6 As we have explained previously, the constitution drafted
in 1846 was not approved by Wisconsin voters.    However, it was
rejected for reasons other than the article on education, and
the 1846 and 1848 versions of the article on education were
substantially identical.    See Thompson v. Craney, 199 Wis. 2d
674, 685 n.5, 546 N.W.2d 123 (1996).       For this reason, the
debates of 1846 are instructive in discerning the meaning of
"supervision" as used in Article X.


                                        14
                                                                 No.    2017AP2278-OA



done by the secretary of state or some other officer already
provided for, leaving to the legislature to [create an SPI] when
the time came."        Id. at 569.      None, however, appeared to believe

that the SPI would possess the power to make laws.
     ¶27     The    debates during      the    Constitutional      Convention     of
1848,   which        led    to   the    ratification        of    the     Wisconsin
Constitution, similarly demonstrate that supervision of public
education is an executive function.              All writers reportedly "had
agreed that the office [of the SPI] should have nothing to do
with the machinery of the school system, or the management of
the funds.         He might be a most improper person for that duty.
His province was to put the system in operation."                       Journal of
the Convention to Form a Constitution for the State of Wisconsin
324, Wisconsin Constitutional Convention (Tenney, Smith & Holt,
printers, 1848).           Delegates recognized that "[t]he duties of a
superintendent were not of a fixed and well known kind, like
those   of   political       officers."        Id.   at   327.     As   previously
mentioned, neither the office of the SPI nor a uniform system of
public instruction existed in Wisconsin prior to 1848.                     For this
reason, some argued that even the manner of choosing the SPI
should be left to the legislature to decide.                     No part of the
discussion, however, involved the suggestion that the SPI should
have the power to make laws.
     ¶28     The dictionary definition of "superintend" at the time
of the debates further suggests that the framers viewed the SPI
as   possessing       executive,       but     not   legislative,        authority.
Webster's An American Dictionary of the English Language (new
                                          15
                                                                       No.     2017AP2278-OA



rev.    ed.    1847-50)     defined         "superintend"       as:     "[t]o        have    or
exercise the charge or oversight of; to oversee with the power
of direction; to take care of with authority; as an officer
superintends the building of a ship or construction of a fort."
Similarly,     "superintendent"         was       defined    as      "one    who     has    the
oversight and charge of something with the power of direction."
Id.;    see    Thompson       v.    Craney,        199   Wis. 2d       674,        684,     546

N.W.2d 123 (1996).            The framers of the Wisconsin Constitution
understood the SPI's superintending function to be executive,
not legislative, in nature.
       ¶29    Our early cases regarding the SPI similarly confirm
this plain-meaning analysis of Article X, Section 1 as granting

the    SPI    the    executive       superintending          function         over    public
instruction,        while   giving      the       legislature        the     authority       to
determine      the     SPI's        "qualifications,           powers,        duties        and
compensation."          For    example,        in    State      ex     rel.     Raymer       v.
Cunningham, 82 Wis. 39, 51 N.W.2d 1133 (1892), the SPI directed
the Secretary of State to pay him more than his $1,200 salary,
plus the expenses actually incurred for his clerk's salary and
actual travel costs.               Id. at 39-40.            However, in 1892, the
Wisconsin     Constitution         provided       that   the      SPI's      "compensation
shall not exceed the sum of twelve hundred dollars annually."
Id. at 46.
       ¶30    Wisconsin's          public     education         system         had        grown
considerably since the ratification of the Constitution in 1848.
For example, the number of school age children had grown from
80,000 to more than 600,000, the value of public school property
                                             16
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had   grown       from   $50,000   to     more    than    $10     million,    and   tax
distributions for public education had grown from $92,000 to
more than $4 million.              Id.     Raymer argued that the SPI had

requested payment for greater expenses than he actually incurred
as a way of evading the maximum constitutional salary of $1,200.
Id. at 47-48.
      ¶31     In   our   examination      of     the    relationship      between   the
legislature and Article X, Section 1, we said:

      [T]he section of the constitution cited prohibited the
      legislature from increasing the compensation of that
      officer beyond the amount named, yet it expressly
      authorized them to increase his duties and enlarge his
      powers   and  responsibilities  ad   libitum.     This
      authority of the legislature has been from time to
      time freely exercised by especially enjoining new
      duties    and   imposing   new   and    more   onerous
      responsibilities.
Id.   at    47.     We   concluded       that    even    though    the    constitution
allowed     the SPI a maximum salary of $1,200,                     the    legislature
remained free to define the SPI's activities and obligations
however it chose.           It was the legislature's province to make
laws, and the SPI's province to administer them.                         See id. at 50
("[I]t is a maxim, in construing a state constitution, that the
legislature is authorized to exercise any and all legislative
powers not delegated to the general government nor expressly nor
by necessary implication prohibited by the national or state
constitution.").
      ¶32     Similarly,     after       the     Wisconsin        Constitution      was
ratified in 1848, the first legislation passed regarding Article
X, Section 1 provided:

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            The   superintendent   shall    have   a   general
       supervision over public instruction in this state, and
       it shall be his duty to devote his whole time to the
       advancement of the cause of education . . . .        To
       recommend the introduction and use of the most
       approved text books, and to secure as far as
       practicable uniformity in education throughout the
       state: . . . To collect such information as may be
       deemed important in reference to common schools in
       each county, town precinct and school district: [] to
       ascertain the condition of all the school funds in
       this state with the amount of the school funds due to
       each township from lands or other sources: . . . to
       adjust and decide all controversies and disputes
       arising under the school lands without costs to the
       parties: [] to perform such other duties as the
       legislature or governor of this state may direct.
Thompson, 199 Wis. 2d at 694 (quoting Section 3 of the Laws of
1848,    at     127-29).          The    specific     instructions      that    the
legislature gave to the SPI, such as his obligation to recommend
"the most approved books" and to "ascertain the condition of all
the school funds in this state" as well as a general directive
that    the    SPI    was   "to     perform    such    other    duties     as   the
legislature or governor of this state may direct" support the
conclusion that the legislature defines the SPI's powers and
duties, while the SPI administers them.
                                  D.    Application
       ¶33    Agencies in Wisconsin have no inherent authority to
make    rules.        Their      rulemaking    authority       comes     from   the
legislature, and may be limited, conditioned, or taken away by
the legislature.        See, e.g., Martinez, 165 Wis. 2d at 697; Wis.
Stat. § 227.19(1)(b)1.-4.
       ¶34    The    Wisconsin     Constitution       vests    "supervision      of
public instruction," which is an executive function, in the SPI.

                                          18
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However, the SPI's powers and duties are set by the legislature.
The SPI therefore has two different sources for its authority,
one which arises from the Wisconsin Constitution and the other
which    is created by legislative delegation.                             The    source for
rulemaking is legislative delegation.                     Because rulemaking is not
"supervision         of     public      instruction"       within      the       meaning    of
Article X, Section 1, it is of no constitutional concern whether
the governor is given equal or greater legislative authority
than the SPI in rulemaking.
       ¶35    This    conclusion         is    consistent      with    our       decision    in
Thompson,      where we reviewed then-governor                   Thompson's         original

action       to     have        1995    Wis.        Act   27    (Act        27)     declared

constitutional.             Thompson,         199   Wis. 2d    at     677-78.        Act    27
"created a new state department, the Department of Education; a
new Education Commission, which supervises the DOE; and a new
office, the Secretary of Education."                      Id. at 678.            The SPI was
one of nine voting members of the Education Commission.                               Id. at
679.     The Secretary of Education served at the pleasure of the
governor and could not be removed by the Education Commission.
Id.    at    678.         The   newly    created      Secretary       of    Education       and
Education Commission were given some of the SPI's constitutional
functions to supervise education.                    Id. at 679.
       ¶36    We held that Act 27 violated Article X, Section 1.                            We
identified two "consistent themes" regarding the SPI from the
constitutional        debates:         "first,      that the    system       of education
required uniformity; second, that the SPI was to provide this
uniformity in an active manner by implementing the system of
                                               19
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education."              Id.   at     688-89.          We   concluded          that     "the    'other

officers' mentioned in [Article X, Section 1] were intended to
be subordinate to the [SPI]" with regard to the "supervision of
public instruction" as the phrase is used in Article X, Section
1.   Id. at 698-99.              Because Act 27 elevated others to a position
equal or superior to the SPI with regard to the supervision of
public instruction, it was unconstitutional.                                Id. at 698-99.
         ¶37   The respondents argue that the provisions in this case
are similarly unconstitutional because they elevate the governor
to   a    position         greater      or     equal        to    the    SPI     with     regard      to
something          the    SPI       does,    as      did     1995        Wis.     Act    27.          The
respondents         point       out     that      we    held        in    Thompson        that      "the
legislature may not give                     equal or            superior       authority      to any
'other     officer'"           over    the    supervision           of    public        instruction.
Id. at 699.               Article X, Section 1 requires that any "other
officer"       who        participates          in      the        "supervision          of      public
instruction"         must       be    subordinate           to    the     SPI    with     regard       to
supervision of public instruction.                          Id.
         ¶38   A    major       flaw    in     the      respondents'            argument       is     the
assumption          that       everything         the        SPI     does        arises        from     a
constitutional grant of authority to the SPI under Article X,
Section 1.          In reality, the SPI engages in some activities that
arise from legislative enactments.                           Rulemaking is one of those
activities.
         ¶39   Although Thompson requires that no other officer be
placed in a position superior or equal to the SPI with regard to
the SPI's exercise of supervision of public instruction under
                                                  20
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Article      X,   Section    1,    rulemaking          is    not    such    a     function.
Rulemaking is a legislative power that does not fall within the
SPI's    supervisory    constitutional            authority         under    Article      X,
Section 1.        Rulemaking is a legislative delegation to the SPI;
therefore, it may be limited or taken away, as the legislature
chooses.      Wis. Stat. § 227.19(1)(b)1.-4.                  That the governor may
be placed in a position superior or equal to the SPI with regard
to rulemaking is consistent with Thompson and with Article X,

Section 1.
                                  III.   CONCLUSION
       ¶40   We     conclude        that         the        gubernatorial          approval
requirement for rulemaking is constitutional as applied to the

SPI and DPI, whether they are found in the REINS Act or in
previous provisions of ch. 227.                    Article X, Section 1 vests
supervision of public instruction, an executive function, in the
SPI.    In contrast, when the SPI, through the DPI, promulgates
rules, the SPI is exercising legislative power that comes not
from the constitution but the legislature.                          Stated otherwise,
the legislature delegates part of its constitutional power to
legislate to the SPI, DPI, and many other agencies in the form
of   rulemaking     power.        That     the    SPI       also   has     the    executive
constitutional function to supervise public instruction does not
transform     the   SPI's    legislatively             delegated     rulemaking        power
into a constitutional supervisory function.                        Therefore, it is of
no constitutional concern that the governor is given equal or
greater legislative authority than the SPI in rulemaking.
       By the Court.—Declaration of rights; relief granted.
                                           21
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     ¶41   SHIRLEY   S.   ABRAHAMSON,   J.,   withdrew      from
participation.




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      ¶42   REBECCA     GRASSL      BRADLEY,         J.     (concurring).                The
majority     correctly       upholds     the        constitutionality             of     the
legislature's     decision     to   require         gubernatorial             approval    of
administrative rulemaking.          I join the opinion except for those
portions espousing the ostensible importance and necessity of
the   legislature's      delegation      of    power       to    the     administrative
state.      See majority op., ¶17.1             The concentration of power

within      an    administrative         leviathan              clashes        with      the
constitutional      allocation      of    power       among        the     elected       and

accountable branches of government at the expense of individual
liberty.    Although this case does not involve a challenge to the
constitutionality       of    legislative        delegations             of     power     to
administrative agencies, I encourage the court to be mindful of
the   structural      separation    of    powers          and    the     safeguards       it
employs to preserve the rule of law.
      ¶43   The    majority     repeats       the     judiciary's          longstanding
perception that "the delegation of the power to make rules and

effectively administer a given policy is a necessary ingredient
of an efficiently functioning government."                        Majority op., ¶17
(quoting Gilbert v. Medical Examining Bd., 119 Wis. 2d 168, 184,
349 N.W.2d 68 (1984) (emphasis added)).                   The majority reiterates
the notion that "[o]ur government could not efficiently operate


      1I agree with the majority that the issues in this case do
not require an "exposition"——"dogmatic" or otherwise——of the
constitutional legitimacy of the administrative state. Majority
op., ¶19. I write in response to the majority's endorsement of
the necessity of delegating legislative power to administrative
agencies. See majority op., ¶17.


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without the administrator and administrative agency."                           Majority
op.,       ¶17   (quoting   Schmidt      v.       Department    of      Res.   Dev.,    39

Wis. 2d 46, 58, 158 N.W.2d 306 (1968) (emphasis added)).                               The
majority         restates   discredited           principles,      disregarding        the
incompatibility of "the system of bureaucratic rule that took
root in the Progressive era and now reaches into virtually every
realm of American life,"2 with the constitution's "deliberate
calibration        of   incentives    and         control   between      the   branches"
reflected in the structural separation of powers.                              Gabler v.

Crime Victims Rights Bd., 2017 WI 67, ¶7, 376 Wis. 2d 147, 897
N.W.2d 384.
       ¶44       The idea that the administrative state is necessary
for good and efficient government "reflect[s] this belief that
bureaucrats might more effectively govern the country than the
American people" and facilitated "the progressives usher[ing] in
significant expansions of the administrative state, ultimately
culminating in the New Deal."                 Perez v. Mortgage Bankers Ass'n,

135    S.    Ct.    1199,   1223   n.6   (2015)        (Thomas,      J.,   concurring).
Underlying the movement toward a burgeoning administrative state
was the governing class's sneering contempt for the people who
elect its members, along with impatience at any resistance of
the people to the views of the enlightened:

            In government . . . the hardest of hard things is
       to make progress. . . . Nowadays the reason is that
       the many, the people, who are sovereign have no single
       ear which one can approach, and are selfish, ignorant,

       2
       Charles J. Cooper, Confronting the Administrative State,
25 National Affairs 96, 96 (Fall 2015).


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      timid, stubborn, or foolish with the selfishnesses,
      the ignorances, the stubbornnesses, the timidities, or
      the follies of several thousand persons,——albeit there
      are hundreds who are wise.
Woodrow Wilson, The Study of Administration, Political Science

Quarterly,    Vol.    2,    No.       2,   197,       207-08     (June       1887).      Wilson
lamented the inability of the unwashed masses to appreciate the
suppositions of "perfectly instructed heads" who would produce
"infallible, placidly wise maxims of government" because "[t]he
bulk of mankind is rigidly unphilosophical, and nowadays [alas!]
the bulk of mankind votes."                Id.       at 209.
      ¶45    The    philosophical            roots         of   rule     by       bureaucratic
overlords     are    antithetical           to       the    Founders'        vision      of   our
constitutional Republic, in which supreme power is held by the
people through their elected representatives, and "the creation
of rules of private conduct" is "an irregular and infrequent
occurrence."        DOT v. Association of Am. R.Rs., 135 S. Ct. 1225,
1252 (2015) (Thomas, J., concurring).                       The people can keep their
rightful powers only if each branch of government "jealously
guard[s]" the responsibilities the people conferred upon them.
Gabler,     376    Wis. 2d 147,        ¶31    (quoting          Barland      v.    Eau   Claire
Cty., 216 Wis. 2d 560, 573, 575 N.W.2d 691 (1998)).                                   "The co-
ordinate branches of the government . . . should not abdicate or
permit others to infringe upon such powers as are exclusively
committed to them by the Constitution."                           Rules of Court Case,
204   Wis. 501,      514,       236    N.W. 717            (1931).        Transferring        to
administrative agencies the core legislative duty of making laws
abnegates powers the people gave their elected representatives.
The   consolidation        of    power       within        executive      branch      agencies

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"often leaves Americans at the[ir] mercy" endowing agencies with
"a    nearly    freestanding        coercive         power"        and     "[t]he       agencies
thereby become rulers of a sort unfamiliar in a republic, and
the people must jump at their commands."                          Phillip Hamburger, Is

Administrative Law Unlawful? 335 (2014).
      ¶46    More recently, "necessity" as a justification for the
administrative state has been tied to the philosophy of a living
constitution,         under    which    the        law    may    be   molded       to    reflect
changing circumstances in society, regardless of what the text

actually       says.          Hamburger,       supra        ¶4,       at    429.          Living

constitutionalism is grounded in sociology, not the law,3 and is
inconsistent with the founding principle that "[t]o adapt the
law to changing circumstances . . . the collective wisdom of the
people's       representatives          is     needed."          Gutierrez-Brizuela              v.
Lynch,    834    F.3d    1142,     1149       (10th       Cir.     2016)     (Gorsuch,          J.,
concurring).            Those     to     whom        the        people      have       conferred
constitutional         powers    may    not     circumvent         those     grants       simply

"because       they     believe        that        more     or     different           power     is
necessary."       A.L.A. Schechter Poultry Corp. v. United States,
295   U.S.     495,    529    (1935).         Necessity          "cannot     be    allowed       to
obscure the limitations of the authority to delegate, if our
constitutional system is to be maintained."                            Id. at 530.             Even
"[e]xtraordinary             conditions        do         not     create          or     enlarge
constitutional power."            Id. at 528.



      3Phillip        Hamburger,       Is     Administrative          Law    Unlawful?          429
(2014).


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       ¶47    The    United       States         and    Wisconsin         Constitutions            both
vest exclusive powers in each of three independent branches of
government,        not    four.         "The      Constitution            does       not    vest    the
Federal       Government         with       an        undifferentiated                'governmental
power,'" but rather, it "identifies three types of governmental
power    and,       in    the    Vesting         Clauses,          commits       them       to   three
branches of Government."                   Association of Am. R.Rs., 135 S. Ct.

at 1240 (Thomas, J., concurring).                           Like the federal system, the
Wisconsin Constitution establishes three branches of government,

and "[t]he separation of powers doctrine is implicit in this
tripartite        division."           Gabler,         376    Wis. 2d 147,            ¶11    (quoting

Panzer       v.   Doyle,        2004       WI    52,        ¶48,    271     Wis. 2d 295,            680
N.W.2d 666;        alteration         in    original).             Article           IV,   Section    1
"vest[s]"         the     "legislative                power . . . in             a     senate      and
assembly";        Article        V,     Section         1     "vest[s]"          the       "executive
power . . . in a governor"; and Article VII, Section 2 "vest[s]"
the    "judicial         power    of    this      state . . . in             a       unified     court

system."            See     Gabler,             376     Wis. 2d 147,             ¶11.            These
constitutional "grants are exclusive," which has been understood
to mean "only the vested recipient of that power can perform
it."     Association of Am. R.Rs., 135 S. Ct. at 1241 (Thomas, J.,
concurring).
       ¶48    "The people bestowed much power on the legislature,
comprised of their representatives whom the people elect to make
the laws."          Gabler, 376 Wis. 2d 147, ¶60.                         "The separation of
powers 'operates in a general way to confine legislative powers
to the legislature.'"                 League of Women Voters of Wis. v. Evers,

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2019 WI __, ¶35, __ Wis. 2d __, __ N.W.2d __ (quoting Goodland

v.     Zimmerman,        243     Wis. 459,          467,    10    N.W.2d 180          (1943)).
Applying an originalist interpretation of the Constitution, some
United States Supreme Court justices and several commentators
have    opined     against       the   legislature          relinquishing         its       vested
legislative power "or otherwise reallocat[ing] it," echoing the
historical        understanding        that     "[t]he      legislative         c[ould       not]
transfer the power of making laws to any other hands:                                   for it
being but a delegated power from the people, they who have it

[could not] pass it over to others."                        Association of Am. R.Rs.,
135 S. Ct. at 1243-44 (Thomas, J., concurring) (quoting John
Locke, Second Treatise of Civil Government § 141, 71 (J. Gough
ed. 1947) (emphasis added; alterations in original).                                  See also
Richard      A.    Epstein,      Why    the     Modern      Administrative            State    Is
Inconsistent with the Rule of Law, 3 N.Y.U.J. of Law & Liberty
491, 496 (2008) (the argument "that the Constitution authorizes
the creation of independent agencies with aggregated powers of a

legislative, executive, and judicial nature . . . fails so long
as it depends on any form of originalism" and "the text itself
points to a system whereby the tripartite division is meant to
be     rigid      in    law");      Hamburger,        supra      ¶4,     at     336     ("[T]he
government        can    bind       Americans       only    through      laws,        and    only
through courts with juries and judges, thus preserving the most
basic conditions of freedom.")
       ¶49     Although a revival of the non-delegation doctrine has
not garnered the votes of a majority on the Court, this was not
always    the     case.        In    the   past,      the    Court     recognized           "[t]he

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Congress is not permitted to abdicate or to transfer to others
the    essential        legislative        functions       with      which     it   is    thus
vested."          A.L.A.      Schechter      Poultry      Corp,      295     U.S.   at    529.

Despite acknowledging that the constitutional "text permits no
delegation of those [legislative] powers" the Court has afforded
much leeway for the legislature to transfer its constitutional
powers       to    executive        branch     agencies,        provided        that     "when
Congress confers decisionmaking authority upon agencies Congress
must 'lay down by legislative act an intelligible principle to

which the person or body authorized to [act] is directed to
conform.'"         Whitman v. American Trucking Ass'ns, Inc., 531 U.S.

457,     472      (2001)    (alteration          in     original).           However,     "the
Constitution         does     not     speak        of    'intelligible         principles.'
Rather,      it    speaks     in    much     simpler      terms:       'All     legislative
Powers herein granted shall be vested in a Congress.'"                                 Id. at
487 (Thomas, J., concurring).
       ¶50     Reallocating the making of rules, voluminous in number

and    significant          in      substance,          from    the         legislature     to
administrative          agencies      housed       within      the    executive        branch,
aggrandizes the power of the latter, at the risk of replacing
the rule of law with the rule of men:

            The idea that the Executive may not formulate
       generally      applicable     rules      of    private
       conduct . . . has ancient roots in the concept of the
       'rule of law,' which has been understood . . . to mean
       that a ruler must be subject to the law in exercising
       his power and may not govern by will alone.
Association        of   Am.    R.Rs.,      135     S.    Ct.   at    1242     (Thomas,     J.,
concurring) (quoted source omitted).                     The concept of the rule of


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law "presupposes at least two distinct operations, the making of

law, and putting it into effect."                    Id. (quoted source omitted;
emphasis      added).            Delegating          legislative       functions       to
administrative       agencies          transforms       the    executive     from     the
executor     of     laws     into       the       lawmaker.        Blackstone——whose
separation     of    powers      principles         "profoundly     influenced"       the
Founders——"defined a tyrannical government as one in which 'the
right both of making and of enforcing the laws, is vested in one
and    the   same   man,    or    one     and     the   same    body   of   men,'     for

'wherever these two powers are united together, there can be no
public liberty.'"       Id. at 1244 (quoted source omitted).

       ¶51   The    Founders     recognized         that     maintaining the       formal
separation     of    powers      was    essential       to    preserving    individual
liberty.

            This devotion to the separation of powers is, in
       part, what supports our enduring conviction that the
       Vesting Clauses are exclusive and that the branch in
       which a power is vested may not give it up or
       otherwise reallocate it.   The Framers were concerned
       not just with the starting allocation, but with the
       "gradual concentration of the several powers in the
       same department."   The Federalist No. 51, at 321 (J.
       Madison).
Id..     "Under the original understanding of the Constitution,"
the function of creating "generally applicable rules of private
conduct . . . requires the exercise of legislative power," and
"the discretion inherent in executive power does not comprehend
the    discretion     to    formulate         generally        applicable    rules     of
private conduct."           Id. at 1242.            The judiciary, however, has
blurred      the    lines      distinguishing           legislative        power     from
executive power, classifying rulemaking as executive in nature
                                              8
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rather      than   the    core    legislative          function       it    was     formerly
recognized to be.         See id. at 1246.

      ¶52    The Wisconsin Constitution replicates the "separation
of powers principles[] established at the founding of our nation
and   enshrined          in     the    structure        of      the        United     States
Constitution."       See Gabler, 376 Wis. 2d 147, ¶11.                      "'Each branch
has   exclusive      core       constitutional         powers       into     which       other
branches may not intrude.'"              Id., ¶30 (quoting State v. Horn,
226 Wis. 2d 637, 643, 594 N.W.2d 772 (1999)).                         These zones "are

to be jealously guarded by each branch of government."                               Gabler,

376   Wis. 2d 147,        ¶31    (quoting       Barland,      216     Wis. 2d at          573)
(internal marks omitted).
      ¶53    The concept of the administrative state is nonexistent
in either the United States or Wisconsin Constitutions, which
means "administrative power runs outside the law."                             Hamburger,
supra ¶4, at 6.

      We have too long abrogated our duty to enforce the
      separation of powers required by our Constitution. We
      have overseen and sanctioned the growth of an
      administrative system that concentrates the power to
      make laws and the power to enforce them in the hands
      of a vast and unaccountable administrative apparatus
      that finds no comfortable home in our constitutional
      structure.   The end result may be trains that run on
      time (although I doubt it), but the cost is to our
      Constitution and the individual liberty it protects.
Association of Am. R.Rs., 135 S. Ct. at 1254-55 (Thomas, J.,

concurring).         In       facilitating       the     vast       expansion       of     the
administrative      state,       the   legislative        and     executive         branches
transferred power from the people's elected representatives and
elected       executives,         bestowing        it        upon         unelected        and

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unaccountable             bureaucrats,              thereby         jeopardizing           the
constitution's safeguards against the tyrannical concentration
of power.       "The administrative regime consolidates in one branch
of    government      the      powers   that        the   Constitution         allocates    to
different branches" resulting in "the exercise of power outside
and above the law."            Hamburger, supra ¶4, at 6.

            To the Framers of the United States Constitution,
       the concentration of governmental power presented an
       extraordinary threat to individual liberty:       "The
       accumulation of all powers, legislative, executive,
       and judiciary, in the same hands, whether of one, a
       few, or many, . . . may justly be pronounced the very
       definition of tyranny." The Federalist No. 47, at 298
       (James Madison) (Clinton Rossiter ed., 1961).
Gabler, 376 Wis. 2d 147, ¶4 (ellipsis by Gabler).
       ¶54    In    Tetra      Tech    EC,    Inc.       v.    Wisconsin    Department      of
Revenue, 2018 WI 75, 382 Wis. 2d 496, 914 N.W.2d 21, we "end[ed]
our        practice       of    deferring           to        administrative      agencies'
conclusions        of      law,"      thereby        reclaiming          the    judiciary's

constitutionally-vested authority to say what the law is.                                Id.,
¶3 (Kelly, J., lead opinion).4                      Rather than placidly accepting

the    administrative          state     as    a     necessary       appendage      to     the
government,        this    court      should    reconsider         its     acquiescence     to




       4
       The legislature codified this principle in Wis. Stat.
§ 227.57 (11) ("Upon review of an agency action or decision, the
court shall accord no deference to the agency's interpretation
of law.").


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subdelegations5 of legislative power to administrative agencies
within the executive branch when the appropriate case presents
the opportunity.            It "is the obligation of the Judiciary not
only to confine itself to its proper role, but to ensure that
the other branches do so as well."                City of Arlington v. F.C.C.,

569 U.S. 290, 327 (2013) (Roberts, C.J., dissenting).                      In this
case, however, none of the parties raise the issue of whether
"our       delegation      jurisprudence    has   strayed    too   far   from   our
Founders' understanding of separation of powers."                    Whitman, 531

U.S. at 487 (Thomas, J., concurring).
       ¶55     Passing      legislation     sometimes       requires     political
courage.       Legislative initiatives may move slowly and some bills
never become laws.           Consequently, "Congress often prefers to set
a politically uncontroversial goal and leave it to the agencies
to figure out the politically controversial means of achieving
that goal."          Charles J. Cooper, Confronting the Administrative
State, 25 National Affairs 96, 103 (Fall 2015).                     Returning all

lawmaking responsibilities to the legislature would remove the
shroud      over     administrative    rulemaking,     placing     the   lawmaking
process       back    in    the   public    eye    where    it   constitutionally
belongs.



       5
       Because the people delegate power through constitutional
grants, "when Congress purports to give its legislative power to
the executive, the question is not whether the principal can
delegate the power, but whether the agent can subdelegate it."
Hamburger, supra ¶5 note 2, at 377.      "[T]he agent ordinarily
cannot subdelegate the power to a sub-agent, as this runs
counter to the apparent intent of the principal." Id. at 380.


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      ¶56    The objective of our Founders was not an "efficiently
functioning government."6            The Founders designed a Constitution
to   safeguard      individual      rights      and    liberty.       The   Wilsonian
vision of rule by enlightened bureaucrats diminishes the power
of the people, in derogation of the principles on which America
was founded.        "The vesting of legislative power in a distinct
political body is a stumbling block to modern intellectuals and
a stone rejected by the builders of the federal bureaucracy, but
it   has    been   and remains      a    cornerstone      in    the   constitutional

architecture of free government."                 Texas v. United States, 300

F.   Supp.    3d    810,     841   (N.D.   Tex.       2018).      "Admittedly,     the
legislative process can be an arduous one.                     But that's no bug in
the constitutional design:              it is the very point of the design."
Gutierrez-Brizuela, 834 F.3d at 1151 (Gorsuch, J., concurring).

      By separating the lawmaking and law enforcement
      functions, the framers sought to thwart the ability of
      an individual or group to exercise arbitrary or
      absolute power.   And by restricting lawmaking to one
      branch   and   forcing   any  legislation   to  endure
      bicameralism and presentment, the framers sought to
      make the task of lawmaking more arduous still.
United States v. Nichols, 784 F.3d 666, 670 (10th Cir. 2015)
(Gorsuch, J., dissenting).               The "inefficiency" inherent in the
legislative        process    "'serves      a    valuable'       liberty-preserving
'function.'"          Id.     (quoted      source      omitted).         "While    the
separation of powers may prevent us from righting every wrong,
it does so in order to ensure that we do not lose liberty."



      6   Majority op., ¶17.


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                                                                        No.    2017AP2278-OA.rgb


Morrison       v.     Olson,    487     U.S.       654,    710     (1988)       (Scalia,      J.,

dissenting).
     ¶57       "The    Framers        could    hardly       have    envisioned . . . the
authority administrative agencies now hold over our economic,
social, and political activities."                        City of Arlington, 569 U.S.
at 313 (Roberts, C.J., dissenting).                        Rather than extolling the
necessity      of     the    administrative          behemoth       in        Wisconsin,    this
court should "glance at the Constitution to see what it says
about    how    [governmental]          authority         must     be    exercised      and    by

whom."      See       Association       of     Am.   R.Rs.,        135    S.     Ct.   at   1240

(Thomas, J., concurring).                 Through the Wisconsin Constitution,
the people conferred exclusive powers on an elected executive,
an elected legislature, and an elected judiciary, respectively.
Noticeably          absent     from     the     Wisconsin          Constitution        is     any
apportionment          of      power      to        unelected           and     unaccountable
administrators.              Because         the     majority        lends       unquestioned
credence        to     the      extra-constitutional                apparatus          of     the

administrative state, I respectfully concur.




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                                                No.   2017AP2278-OA.dk


     ¶58   DANIEL KELLY, J.   (concurring).   I join the majority
opinion except with respect to ¶17.




                                1
                                                        No.   2017AP2278-OA.awb


     ¶59    ANN WALSH BRADLEY, J.        (dissenting).          A mere three
years    ago,   this   court   decided   the   very     issue    that   it   is
reconsidering today.         In Coyne v. Walker, a majority of the

court determined that 2011 Act 21 (Act 21) is "unconstitutional
and therefore void as applied to the Superintendent of Public
Instruction     and    his   subordinates."      2016    WI     38,   ¶4,    368
Wis. 2d 444, 879 N.W.2d 520.
     ¶60    Yet despite this clear mandate, here we are again.                A
provision that does the very same thing as Act 21 is back before

the court.      It comes to us through a new enactment (2017 Wis.
Act 57) and with a catchy new name (the REINS Act), but the
substance is identical.1
     ¶61    And why are we here again?         At oral argument, counsel
for the petitioners was asked, "you wouldn't be here asking a
supreme court of the state of Wisconsin to overturn a decision
that it just made two years ago if it were the same court, would
you?"      In response, counsel acknowledged, "any lawyer has to

make strategic decisions about what is likely to be successful."
Indeed.
     ¶62    Although nothing in our Constitution has changed since
Coyne was decided, what has changed is the membership of the
court.     This time around, a new majority of this court does an
about-face and now concludes that the substance of Act 57 is

     1 See majority op., ¶7 ("The REINS Act did not alter Act
21's requirement that an agency (1) submit a statement of scope
to the governor for approval prior to drafting a proposed rule,
and (2) submit a final draft of a rule to the governor for
approval before submitting it to the legislature.").


                                     1
                                                                No.    2017AP2278-OA.awb


constitutional.        To   reach        this    conclusion,          it    throws   the
doctrine of stare decisis out the window.2
      ¶63   Not   only      is     the        majority       opinion        doctrinally
erroneous, it is also analytically unpersuasive.                            As Justice
Abrahamson    wrote    in   Coyne:            "rulemaking       is     part    of    the

'supervision of public instruction,' which Article X, Section 1
vests in the superintendent."3            368 Wis. 2d 444, ¶85 (Abrahamson,
J., concurring).       Act 21 is unconstitutional "because it grants
the   governor     (and     the     Secretary          of     the     Department     of

Administration)        an        unchecked        veto        power         over     the
superintendent's       rulemaking         powers,           thereby        making    the
superintendent subordinate to the governor (and the Secretary)

      2"Stare decisis" is fundamental to the rule of law.
Johnson Controls, Inc. v. Emp'rs Ins. of Wausau, 2003 WI 108,
¶94, 264 Wis. 2d 60, 665 N.W.2d 257. It refers to the principle
that requires courts to "stand by things decided."       State v.
Harrell,    199  Wis. 2d 654,   667,    546   N.W.2d 115   (1996)
(Abrahamson, J., concurring); see Black's Law Dictionary 1626
(10th ed. 2014) defining "stare decisis" as "[t]he doctrine of
precedent, under which a court must follow earlier judicial
decisions when the same points arise again in litigation").
      3Article    X,     Section     1    of     the     Wisconsin         Constitution
provides:

      The supervision of public instruction shall be vested
      in a state superintendent and such other officers as
      the    legislature     shall   direct;    and    their
      qualifications, powers, duties and compensation shall
      be prescribed by law. The state superintendent shall
      be chosen by the qualified electors of the state at
      the same time and in the same manner as members of the
      supreme court, and shall hold office for 4 years from
      the succeeding first Monday in July.      The term of
      office, time and manner of electing or appointing all
      other officers of supervision of public instruction
      shall be fixed by law.


                                          2
                                                                     No.   2017AP2278-OA.awb


in the supervision of public instruction."                         Id.     Act 57 suffers

the same infirmity.
       ¶64    Because the majority disregards binding precedent and
arrives at a result that unconstitutionally transfers the vested
authority of the Superintendent of Public Instruction to the
governor, I respectfully dissent.
                                              I
       ¶65    This case arises from a petition for original action
filed by the Petitioners against the Superintendent of Public

Instruction      (SPI)     and   the     Department           of     Public      Instruction
(DPI).       Majority op., ¶1.           The Petitioners seek a declaration
that the SPI and DPI must comply with 2017 Wis. Act 57's (Act
57) requirement that they receive the governor's approval prior
to drafting or promulgating an administrative rule.                                 Id.     In

response,      the SPI and       DPI argue,          consistent with             Coyne,    368
Wis. 2d 444,      that   such      a    requirement        is      an    unconstitutional
usurpation of the SPI's vested constitutional authority.                             Id.

       ¶66    Relegating     the       discussion        of     stare      decisis    to     a
footnote, the majority states that it "consider[ed] whether the
doctrine of stare decisis should be employed in the case before
us."     Id., ¶8 n.5 (citation omitted).                        It acknowledges that
Coyne    "addressed      some    of     the       same   statutory         provisions      and
constitutional concerns we examine today . . . ."                          Id.
       ¶67    However, it declines to apply the doctrine of stare
decisis, reasoning that "stare decisis does not require us to
retain       constitutional      interpretations              that      were     objectively
wrong when made . . . because such interpretations are unsound

                                              3
                                                                     No.   2017AP2278-OA.awb


in principle."          Id. (citations omitted).                    Further, it asserts

that it is not required to follow Coyne because "our mandate in
Coyne arises from a lead opinion, joined by one justice, a two-
justice      concurrence,        and    a     one-justice       concurrence."             Id.
Unsurprisingly, the majority ultimately grants the petitioners'
requested relief.         Id., ¶2.
                                              II
     ¶68     Neither      of    the    majority's        proffered         rationales     for
departing from stare decisis is persuasive.                            Stare decisis is

fundamental      to     the    rule    of   law.     Johnson         Controls,     Inc.    v.

Emp'rs Ins. of Wausau, 2003 WI 108, ¶94, 264 Wis. 2d 60, 665
N.W.2d 257.        Indeed, "[t]his court follows the doctrine of stare
decisis scrupulously because of our abiding respect for the rule
of law."     Id.
     ¶69     "Fidelity to precedent ensures that existing law will
not be abandoned lightly.              When existing law is open to revision
in   every      case,    deciding       cases      becomes      a    mere    exercise      of

judicial      will,      with    arbitrary         and     unpredictable          results."
Schultz    v.    Natwick,       2002    WI    125,       ¶37,   257     Wis. 2d 19,       653
N.W.2d 266 (internal quotation and citations omitted).
     ¶70     "No change in the law is justified by a change in the
membership of the court . . . ."                   Bartholomew v. Wis. Patients
Comp.   Fund, 2006 WI 91,              ¶32,     293 Wis. 2d 38,            717   N.W.2d 216
(citation omitted).             Adherence to precedent fosters confidence
in   the   reliability          of    court     decisions,          promotes     consistent
development of legal principles, and contributes to the actual



                                              4
                                                             No.   2017AP2278-OA.awb


and perceived integrity of the Wisconsin judiciary.                      See Johnson

Controls, 264 Wis. 2d 60, ¶95.
       ¶71   Throwing caution to the wind, the majority disregards
the principles that fundamentally underlie our legal system.                       It
contends that Coyne was "objectively wrong."                    Majority op., ¶8
n.6.       Further, it ascribes significance to the fact that the
majority in Coyne consisted of three separate opinions.                     Id.
       ¶72   Apparently,    "objectively         wrong"    is    defined     by   the
majority as what it subjectively thinks is wrong.                       The majority

provides     no   explanation   for    the       assertion       that     Coyne   was

"objectively wrong" other than that it disagrees with it.
       ¶73   Additionally, the split nature of the Coyne opinion is
of    no   import.   The    mandate   of    Coyne    was    clear       despite   the
fractured nature of the opinions.            Although the four justices in
the majority subscribed to differing rationales, they agreed on
the    essential     conclusion:           "We     hold     that     Act     21    is
unconstitutional      and    therefore       void     as        applied     to    the




                                      5
                                                                          No.   2017AP2278-OA.awb


Superintendent            of    Public      Instruction           and    his    subordinates."
Coyne, 368 Wis. 2d 444, ¶4.4                  Full stop.

       ¶74        Such a decision creates no uncertainty and fosters no
confusion.         Act    57,    at       issue    here,      does       not    differ    in    any
material respect from Act 21.
       ¶75        Accordingly,        I   conclude       that      the    doctrine       of    stare
decisis applies here with full force.                             The rule of law and the
"actual and perceived integrity of the judicial process" demand
it.    See Johnson Controls, 264 Wis. 2d 60, ¶95.

                                                  III
       ¶76        The majority errs further in its substantive analysis
of the separation of powers issues this case presents.                                   I joined
Justice Abrahamson's concurrence in Coyne, and I believe that it
remains the correct analysis here.
       ¶77        In Coyne, Justice Abrahamson's concurrence determined
that       2011    Wis.    Act    21,      which        is   in    all    material       respects
identical          to    Act    57,       "unconstitutionally             infringes       on    the

'supervision of public instruction' vested in the superintendent

       4
       See also Coyne v. Walker, 2016 WI 38, ¶80, 368
Wis. 2d 444, 879 N.W.2d 520 (Abrahamson, J., concurring) ("I
conclude, as do the lead opinion (which represents the views of
only Justice Gableman) and Justice Prosser's concurrence, that
2011 Wis. Act 21, which altered the process of administrative
rulemaking, is unconstitutional as applied to the Superintendent
of   Public   Instruction   and   the   Department   of   Public
Instruction."); id., ¶155 (Prosser, J., concurring) (concluding
that Act 21 is unconstitutional "because it would give a
governor authority to obstruct the work of an independent
constitutional officer to such an extent that the officer would
be unable to discharge the responsibilities that the legislature
has given him. An absolute veto power over a proposed rule is a
check without a balance.").


                                                   6
                                                                      No.    2017AP2278-OA.awb


by Article X, Section 1 of the Wisconsin Constitution."                                    Coyne,

368 Wis. 2d 444, ¶93 (Abrahamson, J., concurring).                                    It reached
this       conclusion       because       Act   21     "gives    'equal           or    superior
authority'       [over        the        supervision      of     public           instruction]
to     . . . '[an]other            officer.'"        Id.,      ¶100    (Abrahamson,           J.,
concurring) (citing Thompson v. Craney, 199 Wis. 2d 674, 699,
546 N.W.2d 123 (1996)).5              The same is true of Act 57.
       ¶78    Such      a     conclusion        is      supported           by        significant
constitutional history as has been previously set forth by this

court in Thompson and Coyne.                    See Coyne, 368 Wis. 2d 444, ¶98

(Abrahamson, J., concurring); Thompson, 199 Wis. 2d at 685-98.
"The debates at the 1846 and 1847–48 Wisconsin constitutional
conventions show that the drafters of the Wisconsin Constitution
intended the public schools to be under the supervision of the
SPI, and that the SPI was to be an elected, not appointed,
public official."            Thompson, 199 Wis. 2d at 685.
       ¶79    Delegates to the constitutional conventions echoed two

consistent      themes:             "first,     that    the     system           of    education
required uniformity[, and] second, that the SPI was to provide
this uniformity in an active manner by implementing the system
of     education."           Id.    at    688-89.        Accordingly,             the    framers
"considered      and        explicitly      rejected     a     proposal          to     select   a
superintendent by gubernatorial appointment and a proposal that

       5
       This court previously determined in Thompson that the
former powers of the elected SPI cannot constitutionally be
given to appointed "other officers" at the state level who are
not subordinate to the SPI.           Thompson v. Craney, 199
Wis. 2d 674, 678, 546 N.W.2d 123 (1996).


                                                7
                                                            No.   2017AP2278-OA.awb


would have allowed the legislature to vest 'the supervision of
public instruction       . . . in such officers as shall hereafter be
created by law.'"        Coyne, 368 Wis. 2d 444, ¶98 (Abrahamson, J.,

concurring) (citing Thompson, 199 Wis. 2d at 685-86).                     "Simply
put, the framers viewed the superintendent as 'indispensable,'
'the foundation, the life of progressive education' who 'alone
c[ould] give uniformity, energy, and efficiency to the system.'"
Id.     (citing   Journal      of   the       Convention,   reprinted     in    The
Convention of 1846, at 568, 570-71 (Milo M. Quaife ed. 1919).

      ¶80   Consistent with this history and the determination of
the Thompson court, the concurrence concluded that "rulemaking
is a supervisory power of the superintendent and that 2011 Wis.
Act 21 unconstitutionally gives the governor and the secretary
of the Department of Administration the unchecked authority to
block     rulemaking      by    the       superintendent."          Coyne,      368
Wis. 2d 444,      ¶99   (Abrahamson,      J.,    concurring).      Act   57    does
exactly the same thing.         Thus, the analysis presented in Justice

Abrahamson's concurrence in Coyne is equally applicable to the
issue in this case.         Just as Act 21 was unconstitutional three
years ago, Act 57 remains unconstitutional today.
      ¶81   For the foregoing reasons, I respectfully dissent.
      ¶82   I am authorized to state that Justice REBECCA FRANK
DALLET joins this dissent.




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