Terry H. Schwadron
Dec. 16, 2018
Yesterday, Scott Walker, the outgoing Republican governor of Wisconsin, signed into law measures that limit powers of Tony Evers, his Democratic successor, and expand the authority of Republican lawmakers. It was the last shot for Republicans, outvoted in the elections, to move the state to the political right despite the voting results.
The power grabs in Wisconsin and Michigan, where the Republican-majority state legislatures stripped incoming Democratic governors or attorneys general of their constitutional responsibilities, clearly were outrageous because they, in effect, nullified the state elections.
These outlandish moves set up a court fight. The question I had asked a lawyer friend is whether the effort to set aside the legislators’ moves in court would succeed. His answer: It’s more complicated than you might think.
In other words, being “wrong” in real life may or may not be legally wrong.
That there is something wrong in Wisconsin is beyond debate. Here is New York Times columnist Paul Krugman: “What has gotten less emphasis is the fact that G.O.P. legislative control is also undemocratic. Last month Democratic candidates received 54 percent of the votes in State Assembly elections — but they ended up with only 37 percent of the seats. In other words, Wisconsin is turning into Hungary on the Great Lakes, a state that may hold elections, but where elections don’t matter, because the ruling party retains control no matter what voters do. And here’s the thing: As far as I can tell, not a single prominent Republican in Washington has condemned the power grab in Wisconsin, the similar grab in Michigan, or even what looks like outright electoral fraud in North Carolina. . . The G.O.P. is an authoritarian party in waiting.”
NBC News has been following up with a look at legal strategies. At stake, says NBC, is how a court would interpret “separation of powers” in the state constitution(s).
Just a week or two ago, the Wisconsin Senate, meeting in lame-duck session, voted to approve wide-reaching bills that would empower the GOP-controlled Legislature and weaken the incoming governor and attorney general, both Democrats who are replacing Republicans. On behalf of himself and Gov. elect Tony Evers, incoming Wisconsin Atty. Gen. Josh Kaul, vowed to file multiple lawsuits challenging the legislature’s supposed appropriation of executive authority, in violation of the “separation of powers” doctrine.
While not written in the Wisconsin Constitution, is implicitin the division of powers among the judicial, legislative and executive branches, and is a foundational principle of Wisconsin’s system of government. The state Constitution creates the same three separate, coordinate branches of government, federal government.
No state government branch is to assert control over, or exercise the power constitutionally committed to, one of the other branches. NBC explained that the legislature in Wisconsin has a”core zone” of exclusive authority into which the executive and judicial branch may not intrude. In these core areas, any exercise of authority by the judiciary would be unconstitutional.
On the other hand, the majority of governmental powers among the branches also overlap. In these areas of “shared power” one branch of government may exercise the power possessed by another branch, but only if it does not unduly burden or interfere with that other branch’s power.
The legal challenge is determining which areas are “shared” between the legislative and other branches, and which areas are core, unquestionable legislative branch powers.
Democrats will argue that it is the state judiciary’s long-recognized duty to hear a lawsuit challenging the acts of the legislature for any conflict with the Wisconsin constitution, which the state supreme court has done in the past, even when political considerations may exist. But a court reviewing the would also have to consider whether this dispute involves a “nonjusticiable political question.”
The courts could cite the “political question” doctrine to decline to adjudicate issues better left resolved by the legislative branch. If the challenged action is exclusively committed to the legislative branch, it may be described as a “political question.”
NBC concluded that it is hard to determine whether, in a particular case, the court will review the actions of the legislature for constitutionality, or whether it will stay out of the dispute because that issue is solely the province of the legislature.
For example, Wisconsin courts have in the past considered the legislature’s adherenceto its own procedural rules a matter entirely within the legislature’s control, and not subject to judicial review. Wisconsin courts will not invalidate a state law because of the legislature’s failure to comply with its own procedural rules, so long as all constitutional requirements have been followed.
You’d hope that a judge would recognize that the extraordinary move to nullify the elections through legislative action would be ruled out of bounds legally.
Better, Wisconsin and Michigan voters should throw the bums out next time.