A win for checks and balances and a win for actual expertise
The Wisconsin Supreme Court’s ruling against the GOP-controlled legislature’s rules committee, which will allow for a ban on so-called “conversion therapy,” is an important victory for many reasons.
The Recombobulation Area is a thirteen-time NINETEEN-TIME Milwaukee Press Club award-winning opinion column and online publication founded by longtime Milwaukee journalist Dan Shafer. The Recombobulation Area is now part of Civic Media.
Earlier this month, Wisconsin saw an important win for checks and balances in our state government. It was also a win for deference to actual subject matter experts, even as both are being attacked on the federal level. We’re very much living in an era when every small victory counts in the fight to stop the onslaught of autocracy.
In early July, the Wisconsin Supreme Court ruled that a legislative committee can’t block administrative rules made by state agencies. It was a 4-3 decision, siding with Gov. Tony Evers, whose administration filed the lawsuit.
The question at the heart of the Wisconsin Supreme Court’s decision is this: Who has the right and the expertise to make specific rules and regulations based on the laws passed by our elected bodies? Should it be a small group of politicians who may or (more likely) may not know anything about the matter at hand, or should we defer to the people with the relevant technical and scientific knowledge?
The court’s answer favors the latter. The ruling will have wide-ranging implications for important issues in the state. The immediate effect will be to allow Wisconsin to finally implement a ban on so-called conversion therapy, the widely discredited, harmful, and discriminatory practice of trying to make LGBTQ+ people stop being queer or trans.
The suit was brought by the Evers administration against the Legislature’s Joint Committee for the Review of Administrative Rules (JCRAR), a powerful, Republican-controlled committee in charge of reviewing and approving state agency regulations. JCRAR had for years blocked efforts by the Examining Board of Marriage and Family Therapy, Professional Counseling, and Social Work from adding a rule to their Code of Conduct banning the use of conversion therapy by state-accredited therapists. This was in spite of the fact that state statute and legislative memos support the authority of professional boards to create their own conduct codes.
And doesn’t it make sense to allow people with the most experience, the most direct knowledge of a subject, and the most ability to dig into research and data, to design and implement the relevant rules and regulations? These aren’t rogue actors we’re talking about. They’re professionals working in the public interest, not beholden to a particular political party or leader, and empowered through laws passed by the Legislature and signed by the Governor.
Read more from Emily Mills at The Recombobulation Area
As Chief Justice Jill Karofsky stated in the majority opinion, the Legislature retains its ultimate power over the rulemaking process, which is created in the first place and can change at any time, through the regular process, and so long as “it adheres to the constitution.” That’s how governments should work.
The court’s conservative justices, along with Assembly Speaker Robin Vos and many of his fellow Republicans, would have us believe that this ruling represents an outright attack on checks and balances. To them, removing the ability of a small group of partisans to indefinitely block state agencies from doing their legally mandated jobs is an affront to democracy itself. Justice Rebecca Bradley even had the audacity to claim progressives want to turn Evers into their “king.” The sheer hypocrisy of the Trump-supporting class accusing others of kingmaking is enough to make a person’s head spin right off their neck.
As noted by Midwest Environmental Advocates, this ruling has larger implications than even just the conversion therapy ban. The JCRAR had previously blocked environmental protections passed by the full Legislature and signed by the governor, among other overreaches. And this was one of two major incidences of legislative overreach addressed in the suit. The other was ruled on by court in 2024 when it held that the Legislature’s Joint Finance Committee could not anonymously and indefinitely veto Department of Natural Resources grant decisions under the Knowles-Nelson Stewardship Program (maddeningly, Republicans were so angry about having this toy taken away that they outright stripped funding for the widely popular program from the state budget this year, meaning it will have to be saved through stand-alone legislation, which will be an uphill battle, to say the least).
It’s hard not to think of the opposite happening at the federal level. The U.S. Supreme Court ruled last year to undo the Chevron doctrine, a longstanding legal precedent that had ensured that federal agencies were generally deferred to when it came to interpreting laws passed by Congress that contained ambiguities or gaps. As Justice Elena Kagan wrote in her dissent, “Agencies are more likely to have the technical and scientific expertise to make such decisions. [Chevron] has been applied in thousands of judicial decisions. It has become part of the warp and woof of modern government, supporting regulatory efforts of all kinds — to name a few, keeping air and water clean, food and drugs safe, and financial markets honest.”
So, while the Roberts Court has been busy taking more power for itself and courts generally over rulemaking and interpretation, the Wisconsin Supreme Court has done us a solid at the state-level, at least, providing something of a bulwark against similar, politically-motivated overreach.
In short, it’s good, actually, that a handful of politicians are no longer allowed to stonewall the efforts of state agencies — already empowered by the full Legislature — to use their expertise to help Wisconsinites. And it’s good, actually, that we have people willing to dedicate themselves to particular fields of study and work, so that we don’t all need to become armchair “experts” on everything.
This most recent ruling might also help create a cushion against some of the worst overreaches of the MAGA-fueled court takeover at the federal level, to boot.
The fight is far from over, of course, and will almost certainly require continuing to elect progressive representatives who will pass clear laws that benefit all of us, beyond what even state agencies can do. In the meantime, queer and trans folks can enjoy an increasingly rare victory that helps protect our rights and dignity as human beings.
Emily Mills is a longtime freelance writer/reporter based in Madison. They previously served as Editor of Our Lives, Wisconsin's only LGBTQ+ media outlet, and as an opinion columnist in the Milwaukee Journal Sentinel. You can currently find Emily's work at tonemadison.com and at their own newsletter, Grist From the Mills.
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