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WILL challenges partial vetoes at state Supreme Court

August 06, 2019 by Richard Moore

In an original action filed at the Wisconsin Supreme Court last week, the Wisconsin Institute for Law & Liberty (WILL) has asked the state’s highest court to review Gov. Tony Evers’s use of partial vetoes. 

In its petition, WILL argues the governor improperly and unlawfully used his partial veto powers on various provisions of the recently signed state budget bill to effectively create new laws never approved by the Legislature.

When Evers signed the state budget on July 3, the governor carved it up with partial vetoes, WILL alleges. While Evers followed what is a common practice among Wisconsin governors — the governor’s veto power is one of the most powerful in the country — WILL says governors violate the law when they use partial vetoes to change the fundamental policy measures contained in approved budget provisions.

“The governor’s veto power has been used creatively, and sometimes absurdly, by governors of both parties,” WILL president and general counsel Rick Esenberg said. “But the partial veto cannot act as a magic wand, creating new laws whole cloth. Gov. Evers’s partial vetoes go beyond the acceptable scope of this power, and WILL is asking the court to review and rein in the partial veto power to safeguard liberty and defend the constitution.”

The Wisconsin constitution gives governors the authority to veto appropriation bills in whole or “in part.” Barring a constitutional amendment, that will continue to be the case, WILL stated; however, in the state budget, Evers’s vetoes not only blocked budget provisions from being enacted, the group stated, but effectively created new laws never voted on by the state Legislature.

For example, WILL stated, a partial veto turned a grant program to replace school buses into funding of up to $10 million for electric vehicle charging stations. Another altered funds to local government for improving local roads into a virtually unrestricted fund, WILL alleged. 

Yet another partial veto altered uniform vehicle registration fees for trucks, and a fourth expanded the definition of “vapor products” and may have altered tax and regulatory authority, the group alleges.

The action

Specifically, according to the petition filed with the court, Evers’ vetoes violated the constitution by assuming legislative power which the constitution vests in the Senate and Assembly, among other things.

“In sum, Gov. Evers illegally assumed the role of a one-person Legislature,” the petition states, arguing that Evers “wrote with his eraser” and drafted new laws never approved by the Legislative branch.

The issue was important and timely enough that the Supreme Court should hear the petition directly, the petition states.

“Given the pressing and significant nature of the questions involved, that only this court is capable of granting the relief requested, and that this court traditionally has reviewed partial veto challenges via original action, an original action is the appropriate vehicle for this suit,” the petition states.

The petition cited numerous examples WILL said was illustrative of Evers making law by himself. The use of funds obtained by the state in a litigation settlement with Volkswagen was one such example, WILL alleges.

The original language submitted to the governor gave clear direction to the state Department of Administration to establish a grant program to provide school boards with funds for replacing old school buses with energy efficient school buses, and it also provided specific guidelines as to how that program should operate, WILL states. 

“Gov. Evers, however, used his veto to remove most limitations and to create a brand new grant program, never approved by the Legislature, ‘for alternative fuels,’” the petition states.

Evers’ own veto messages shows the governor is unilaterally replacing legislative intent with his own policy judgments, WILL argues.

For example, in the budget bill, the Legislature adjusted registration fees paid by truck owners based on vehicle weight in an attempt to equalize fees across four classes of vehicles. But Evers accepted two fee increases and rejected two fee decreases, maintaining a disparity.

“I object to owners of lighter vehicles unfairly being charged the same fees as those for heavier trucks,” Evers wrote in his veto message. “Heavier trucks do more damage to roadways and therefore should be charged more than lighter trucks.”

The merits of such a policy aside, that was not the Legislature’s intent, WILL argues.

“This was a choice the Legislature of course could have made but did not,” the petition states.

While the state constitution provides that “(t)he legislative power shall be vested in a senate and assembly,” in multiple instances, Evers used the partial veto to eliminate essential, legislatively imposed “condition(s)” and “proviso(s),” the petition contends, and to enact sweeping new programs and regulatory schemes that were never approved or drafted by the Legislature.

“Further, his partial veto left laws that fail to provide adequate direction to agency decision-making, in violation of the non-delegation doctrine, which forbids the delegation of legislative power to the executive branch,” the petition states. 

The constitution also provides that “(a)ppropriation bills may be approved ... in part by the governor, and the part approved shall become law,” WILL observed.

“Yet the new laws enacted by Gov. Evers are no ‘part’ of the appropriation bill sent to his desk,” the petition alleges. 

Third, the petition continues, while the constitution provides that “(n)o money shall be paid out of the treasury except in pursuance of an appropriation by law,” the governor’s vetoes directs the expenditure of new funds pursuant to the fiat of a single executive branch official instead of a law duly passed by the Legislature. 

Finally, the constitution provides that “any law which imposes, continues or renews a tax, or creates a debt or charge, or makes, continues or renews an appropriation of public or trust money” requires a quorum of “three-fifths of all the members elected to such house.” 

Yet not a single legislator approved the legislation pursuant to which new funds will be spent or taxed, WILL argues.

“The provisions challenged are thus quadruply unconstitutional, and Gov. Evers’s use of the partial veto was likewise unconstitutional,” the petition contends. “Any implementation of these provisions by the administrative state would involve an unlawful expenditure of taxpayer funds.” 

Richard Moore is the author of the forthcoming “Storyfinding: From the Journey to the Story” and can be reached at richardmoorebooks.com.


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