Another thing that makes us better than Wisconsin: rulemaking | Opinion

May 5, 2022 6:00 am

Wisconsin GOP Speaker Robin Vos — not the guy you want looking after your state’s health and safety rules. Photo via Vos official Facebook.

Minnesota and its neighbor to the east are often compared. Whether politics, the economy, sports, or beer, residents of both states enjoy the competition. 

But for one such comparison, we can find a clear winner. If you were thinking about the administrative rulemaking process: good guess. With its voluminous regulations, rulemaking can epitomize government overreach or intrusiveness, yet rulemaking serves an important role in protecting the public’s health, safety and welfare. And given the Supreme Court’s newfound enthusiasm to strike down federal regulations, state rulemaking has never seemed so critical.

And compared to Minnesota’s rulemaking process, Wisconsin’s resembles a feeble badger, lacking teeth, sense or any semblance of separation of powers between legislative and executive branches.

Minnesota rulemaking: The North Star

In Minnesota, the rulemaking process runs through an independent state agency, the Office of Administrative Hearings (OAH). OAH comprises administrative law judges and staff attorneys who review an agency’s proposed administrative rule to ensure compliance with rulemaking requirements. Created in 1975, OAH is no stranger to agency rulemaking; until 1995, OAH shared oversight over agency rulemaking with the office of the attorney general.  Since 1995, OAH has completely overseen the modern-day rulemaking process that Minnesota follows today. 

Except for limited circumstances, an agency can’t adopt a rule without OAH approval. As Minnesota’s rule gatekeeper, OAH takes its role quite seriously, as demonstrated in a 2020 rule report:

Because rulemaking involves the exercise of law-making power, the Legislature imposes a series of technical and exacting conditions on the promulgation of new rules. Fulfilling these conditions is legally required, essential to public confidence in state government, and necessary to prevent abuses of power.


Although plenty of other rulemaking safeguards exist to guard against unbridled agency discretion, OAH serves as the main watchguard that protects the public from Minnesota agencies running amok.

Wisconsin lags

Wisconsin, in contrast, doesn’t have an OAH-like entity. Instead, Wisconsin relies on the Legislature to do OAH’s job. Wisconsin’s rulemaking choice makes sense in theory: Of course the Legislature should review laws that unelected officials make. But here, theory does not equate to practicality.

For example, an agency can’t get its rule approved without a signoff from a joint legislative committee known as the Joint Committee for Review of Administrative Rules, or JCRAR. Made up of six Republicans and four Democrats, JCRAR can: 1. request an agency to meet with it to discuss the agency’s rule; 2. require a public hearing on the rule; 3. require the agency to conduct an economic impact analysis; or, 4. require an agency to adopt an emergency rule.

Although these JCRAR powers are reasonable, separation-of-powers concerns manifest in how JCRAR can by majority vote of a quorum decide to temporarily suspend an agency’s proposed or existing rule (multiple times) or indefinitely suspend a proposed rule. If a rule is indefinitely suspended, a legislator can introduce a bill to override JCRAR’s suspension, but the bill must be signed into law, a reality hard to imagine given the Legislature’s Republican gerrymander.

More troubling is the basis on which JCRAR can object to a rule; while the reasons for objection are similar to those that OAH relies on to disapprove a rule, JCRAR is a legislative body making a judicial determination. That is, while courts are criticized for legislating from the bench, JCRAR could be accused of ruling from the dais. 

Take one of the reasons for objection, that the agency was arbitrary or capricious or imposed undue hardship; this subjective determination is one that should be made by trained, judicially independent judges (like those of OAH) — not partisan legislators.

Speaking of partisan legislators, Wisconsin is one of the nation’s most egregiously gerrymandered legislatures. According to a Wisconsin Public Radio article, Wisconsin’s just-approved legislative map would produce — in the state Assembly — a 63-36 Republican-Democrat split even after an election in which both parties receive an equal share of votes. So even if Wisconsin keeps a Democratic governor, the Legislature can greatly hinder the executive branch from implementing the governor’s policy agenda.

A visible consequence of this legislative intrusion into the executive branch can be seen in a Wisconsin judge’s recent ruling that struck down the state’s authority to regulate PFAS, also known as “forever chemicals.” The judge ruled that any regulations must go through the rulemaking process, essentially a death knell for PFAS regulations considering JCRAR’s partisan tilt.

Given the public health issues associated with PFAS, the ruling carries health implications for many Wisconsinites and highlights the broad societal implications of gerrymandering, beyond mere political concerns.

Minnesota mirrored Wisconsin but then evolved

Minnesota had an entity like JCRAR, but because of constitutional separation-of-powers concerns, the Legislature in 1994 repealed the entity’s authority to suspend an agency’s rule. Similarly, at the federal level, Congress can’t intrude into the executive branch’s rulemaking authority and suspend rules — the Supreme Court has ruled as such. 

Legislatures have the ultimate authority to make laws, but they can also delegate law-making authority to the executive branch; they have done so since the 1870s to protect the public with railroad regulations, and they have continued to do so for over 100 years. 

Think about new developments such as drones, artificial intelligence and even cryptocurrencies. As society evolves, so must regulations. These regulations must involve both the legislative and executive branches: One sets the general framework, and the other fills in the framework.

The Wisconsin Legislature acts as judge and jury on an executive-branch function that’s critical to a functioning society, which makes one wonder why Wisconsin sees the point of delegating authority in the first place.

In contrast, Minnesota discovered how to ensure agency accountability and transparency while allowing agency subject-matter experts to write laws that protect the health, safety and welfare of Minnesotans. 

Score one for Minnesota. On to football season.

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Ian Lewenstein
Ian Lewenstein

Ian Lewenstein has worked for the Minnesota Legislature and several state agencies. He specializes in administrative rulemaking and plain language. His comments represent his views alone.