Madison Federalist Society Hosts “The State of Wisconsin’s Administrative State”

In partnership with the Federalist Society Regulatory Transparency Project and the WMC Foundation, the Madison Lawyers Chapter of the Federalist Society hosted on March 19 a discussion on the State of Wisconsin’s Administrative State. Panelists including Wisconsin Assembly Speaker Robin Vos (R-Rochester), Professor Adam White, and former Wisconsin Solicitor General Misha Tseytlin discussed regulatory reforms in Wisconsin’s 2018 Extraordinary Session, previous reforms, and related pending litigation.

Speaker Vos kicked of the program with his perspective on the extraordinary session legislation. Speaker Vos said the bills, specifically changes to the governor’s and attorney general’s authority in Act 369, rebalance the powers of the legislature and executive as intended by Wisconsin’s founders and constitution.

Following the Speaker was Professor Adam White, executive director of the C. Boyden Gray Center for the Study of the Administrative State and assistant professor at George Mason University Antonin Scalia Law School. Professor White gave a general overview of administrative law and discussed the growth of administrative power at the state and federal level. Professor White commended Wisconsin for being the first state to pass the Regulations from the Executive in Need of Scrutiny (a.k.a. REINS) Act.

Next Bob Fassbender, president and chief legal counsel of the Great Lakes Legal Foundation, and Delanie Breuer, former chief of staff to Attorney General Brad Schimel, discussed rulemaking in Wisconsin. Fassbender and Breuer noted several significant rulemaking reforms passed in Wisconsin, including 2011 Act 21 and the REINS Act, as well as pending litigation and other issues regarding implementation of these reforms.


The next panel discussed how the extraordinary session legislation reasserts legislative authority of the administrative state. Kevin LeRoy, litigation associate at Foley & Lardner and former Wisconsin deputy solicitor general, commented on the growing power of state attorneys general and noted that the 2018 legislation gives the legislature more oversight to prevent the attorney general from unilaterally acting on behalf of the state. Lane Ruhland, director of environmental and energy policy at Wisconsin Manufactures & Commerce, discussed how Act 369’s guidance document transparency requirements will provide more certainty to the regulated community in Wisconsin.

Closing out the day was a discussion on two pending cases in Wisconsin courts seeking to throw out the extraordinary session legislation. The panel consisted of Misha Tseytlin, former Wisconsin Solicitor General and attorney for the legislature in both pending cases; Jeff Mandell, attorney for the plaintiffs in League of Women Voters, et al. v. Knudson; and Professor Miriam Siefter, assistant professor at University of Wisconsin Law School. The panel discussed the merits of the two cases League of Women Voters, which argues the legislature does not have legal authority to call extraordinary sessions, and SEIU, et al. v. Vos, which argues provisions of Act 369 violate constitutional separation of powers principles.

Click here for the full State of Wisconsin’s Administrative State agenda.

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