WILL Press Release | WILL Addresses Concerns Raised by Opponents of State Regulatory Reform

Published on: March 3, 2016

Legislative Council memo is flawed; REINS Act is constitutional

March 3, 2016 – Milwaukee, WI – The Wisconsin Institute for Law & Liberty released a memo it prepared regarding 2015 AB 251, commonly known as the REINS Act. AB 251 gives the legislature greater oversight of the regulatory process, requiring legislative approval for any administrative rule estimated to have over $10 million in economic impact. It passed the State Assembly on a 60-33 vote last week.

Opponents of the legislation have pointed to a memo prepared by the non-partisan Legislative Council, which raised concerns that the proposed reforms may be unconstitutional.

WILL President and General Counsel Rick Esenberg and Deputy Counsel and Litigation Manager Thomas Kamenick reviewed the memo and concluded that the Legislative Council engaged in a flawed analysis, essentially answering the wrong question.  The memo relies on legal authorities that require a bill passed by both houses and signed by the governor in order to repeal an already-enacted rule.  But AB 251 has no effect on rules that have already become effective, making those authorities inapplicable.

From the memo prepared by WILL staff:

All AB 251 does is add another step to the process of creating a rule.  Chapter 227 already has 14 pages and 19,000 words laying out that process, including many steps an agency must complete before promulgating a rule.  Because an agency’s authority to create law is a delegation of the legislature’s own law-making authority, the legislature can put nearly any safeguards it wants on that process.  See Thomson v. Racine, 242 Wis. 591 (1943).  The legislature has expressly reserved to itself the power to control the rule promulgation process and the power to delay or suspend a proposed rule.  Wis. Stat. § 227.19(1)(b)3., 4.

WILL Deputy Counsel and Litigation Manager, Thomas Kamenick, noted, “We’re certain that the REINS Act is constitutional.   The legislature has the ultimate authority for creating law in Wisconsin, and can retain final approval over administrative rulemaking if it so chooses.”

WILL’s memo can be found here. The Wisconsin State Senate is expected to vote on the measure in the coming weeks.

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