Friday, April 18, the Wisconsin Supreme Court in a 4-3 decision upheld Gov. Tony Evers’ 2023 partial veto that extended annual school funding increases until the year 2425 by striking numerals and punctuation in the budget bill. The GOP-controlled legislature had passed a two-year increase in schools aids. Gov. Evers used his partial veto authority to, in addition to issued other partial vetoes, change a sentence in the budget bill from “for the 2023-24 school year and the 2024-25 school year” to read “for 2023-2425.” By doing so, he was able to extend these annual funding increases until the year 2425.

Regarding the ruling Gov. Evers said, “This decision is great news for Wisconsin’s kids and our public schools, who deserve sustainable, dependable, and spendable state support and investment.” Scott Manley, executive vice president of government relations with Wisconsin Manufacturers and Commerce, which had filed the lawsuit, described the veto and the court’s upholding of it as “an embarrassing example of executive overreach, and an equally embarrassing example of a hyper partisan judicial ruling.”

This decision significantly affects what had been the general understanding of gubernatorial veto powers in Wisconsin and will dramatically affect how the Wisconsin Legislature proceeds as it considers the next two-year state spending plan. Lawmakers will proceed with caution as they determine how to now proceed in light of this new understanding of gubernatorial veto powers.

Separation of Powers Cases Pending Before the Wisconsin Supreme Court

Two additional cases before the Wisconsin Supreme Court could also significantly affect the powers of both the Governor and the Legislature.

These cases are:

• Literacy Trailer Bill: A challenge to Gov. Evers’ use of partial vetoes in literacy-related legislation, with Republicans arguing the vetoes were unconstitutional because the bill wasn’t a true appropriations bill and therefore not subject to a partial veto under the Wisconsin Constitution, while Gov. Evers maintaining they were within his legal authority. In July 2023, Gov. Evers signed into law legislation creating a literacy coaching program with associated financial grants for schools adopting approved reading curricula. The financial grants were created by the 2023-25 state budget bill and allocated $50 million for this initiative. In separate legislation signed by Gov. Evers, guidelines for distributing this $50 million were created. Gov. Evers used his partial veto authority when signing this separate legislation. GOP legislators sued, arguing this separate bill did not actually appropriate any money and therefore was not subject to gubernatorial partial-veto authority. If upheld this, too, would significantly affect the general understanding of the governor’s partial-veto powers.
• JCRAR Oversight: A case challenging the Joint Committee for Review of Administrative Rules’ role in the administrative rulemaking process. The Wisconsin Supreme Court is reviewing a case challenging the legislative authority of the Joint Committee for the Review of Administrative Rules (JCRAR) over executive branch rulemaking. Gov. Evers filed the lawsuit in October 2023, asserting that JCRAR’s power to indefinitely block administrative rules constitutes an unconstitutional “legislative veto,” improperly infringing upon the executive branch’s authority to implement laws via rulemaking. The dispute centers on JCRAR’s actions in rejecting rules, such as a ban on conversion therapy and updates to the state’s commercial building code, without full legislative action. Gov. Evers contends that this process bypasses the constitutionally-required bicameralism and presentment procedures, which involve passage by both legislative chambers and presentation to the governor of legislative proposals to reject administrative rules.

The Wisconsin Supreme Court’s decisions in these two additional cases could also significantly affect the balance of power between Wisconsin’s executive and legislative branches.