Introduction
On July 8, 2025, the Wisconsin Supreme Court struck down five statutes that, since 2018, have empowered four members of a ten-member legislative committee, the Joint Committee for Review of Administrative Rules (“JCRAR”), to effectively veto an agency’s proposed and promulgated rules. See Evers v. Marklein (“Marklein II”), 2025 WI 36. In reaching this conclusion, the Court adopted a new interpretation of the Wisconsin Constitution’s bicameralism and presentment requirements, derived from the United States Supreme Court’s reasoning in Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983). By invalidating JCRAR’s legislative veto power, Marklein II profoundly reshapes the rulemaking process in Wisconsin by allowing administrative agencies to more effectively promulgate rules in areas within their statutory purview and areas of expertise.
Background
Bicameralism and Presentment:
The terms bicameralism and presentment describe the process that the Wisconsin Constitution requires the Legislature to undergo to enact laws. A law can only be enacted by bill, and before a bill becomes a law, the bill must pass through both houses of the Legislature—i.e., the Assembly and Senate—and be presented to the Governor for approval. Wis. Const. art. IV §§ 17, 19 & art. V, § 10(1). If the Governor approves the bill, or fails to act on it, the bill becomes law. Id., art. V, § 10. If, however, the Governor rejects the bill, the bill may still become law if a supermajority of both houses overrides the Governor’s veto. Id., art. V, § 10(2). Bicameralism and presentment constitute “carefully crafted constraints,” Marklein II, 2025 WI 36, ¶38, that “cabin the Legislature’s otherwise vast lawmaking powers,” id., ¶45.
In 1983, the United States Supreme Court ruled that, under the federal Constitution’s bicameralism and presentment analogs, an act performed by a legislative body is “legislative in its character and effect” if it has “the purpose and effect of altering the legal rights, duties and relations of persons . . . outside the legislative branch.” Chadha, 462 U.S. at 952. The United States Supreme Court reasoned that such a legislative act is subject to bicameralism and presentment. Id. at 954-55.
The Challenged Statutes:
The Legislature created JCRAR in 1966 to oversee agencies’ promulgation of rules. Marklein II, 2025 WI 36, ¶¶5-7. Since JCRAR’s creation, the Legislature has steadily expanded the committee’s powers, most recently during the 2017 lame-duck legislative session when the Legislature authorized JCRAR to indefinitely object to a proposed rule and to suspend promulgated rules in perpetuity through multiple suspensions. Id., ¶¶6-8. Prior to Marklein II, JCRAR could pause a proposed rule for review (Wis. Stat. § 227.19(5c)), object to the proposed rule (§ 227.19(d)), and indefinitely object to the proposed rule (§ 227.19(dm)). Post-promulgation, JCRAR could temporarily suspend a rule for 30 days (§ 227.26(d)) and suspend a rule multiple times (§ 227.26(im)).
In Marklein II, the Governor, joined by several administrative agencies (collectively, “the Governor”)...
