State High Court Hears Oral Arguments On Schools Chief’s Rulemaking Powers

A conservative-leaning Wisconsin Supreme Court justice is suggesting that requiring the state schools superintendent to get the governor’s permission to enact regulations doesn’t reduce the superintendent’s executive powers.

Republicans passed a law in 2017 that requires the superintendent to get the governor’s permission before promulgating regulations and policies.

Republicans have been trying to limit the superintendent’s powers for years. The GOP passed a law in 2011 that requires state agencies to get the governor’s permission before writing regulations. The Supreme Court ruled in 2016 that the law didn’t apply to the superintendent.

Republicans passed new laws in 2017 requiring agencies to get permission from the governor and the state Department of Administration to write regulations. The Wisconsin Institute for Law and Liberty, a conservative law firm, has asked the Supreme Court to declare that the new requirements apply to the superintendent.

Attorneys for DPI argued Wednesday during oral arguments that the law gives the governor control of the agency even though the superintendent is an independently elected officer.

Justice Dan Kelly told the DPI’s attorney, Lester Pines, that even if the superintendent can’t craft policy, he or she would still have plenty to do enacting the Legislature’s policies, preserving the office’s executive authority.

Pines responded that the essence of the problem is the law makes the governor the superintendent of public instruction.

During oral arguments, liberal-leaning justices pressed Rick Esenberg, an attorney for WILL, on why he’s still fighting to force the state schools superintendent to get permission from the governor to enact the regulations when the court already ruled the superintendent is independent.

Liberal-leaning Justice Rebecca Dallet said the court already has set precedent on the question. Esenberg said the issue is so important the court should revisit it.