There is a legal reckoning on the horizon.
At the height of the COVID-19 pandemic, state and local governments delegated an extraordinary amount of power to unelected public health officials.
Now, two and a half years into the pandemic, the public is still grappling with the consequences of this unprecedented transfer of power from elected representatives to unelected experts.
Case in point: The story of A Leap Above Dance studio in Dane County, Wisconsin.
A Nutcracker nightmare
In May 2020, the Dane County Board of Supervisors gave the county public health officer—one person—unilateral rulemaking authority to issue emergency orders with harsh civil forfeiture penalties.
After A Leap Above Dance studio held a socially distanced production of “The Nutcracker” ballet around Christmas 2020, the county public health officer filed an enforcement action against the dance studio seeking $24,000 in fines.
Absurdly, the public health officer categorized the socially distanced ballet as a “high-risk sport” and counted each of the ballet’s eight segments as a separate event, and each student participating in the various segments as a separate violation—maximizing the amount of the fine.
The dance studio joined two other petitioners in a lawsuit, Becker v. Dane County, challenging the public health officer’s authority to enforce orders. The lawsuit presented Wisconsin with an opportunity to revisit the nondelegation doctrine, an important but long-ignored principle that prevents one branch of government from inappropriately transferring its constitutionally assigned powers to another.
Wisconsin’s Supreme Court just handed down a complicated decision in the case that asks as many questions as it answers.
Unlawful delegation in Dane County
Delegating lawmaking authority to executive branch officials is an end-run around the democratic process and a violation of the separation of powers, a classic check on governments’ abuse of power and protection for individual liberty.
Before Dane County passed its May 2020 ordinance delegating rulemaking authority to the public health officer, the Wisconsin state legislature had already assigned every local public health officer the power to “promptly take all measures necessary to prevent, suppress and control communicable diseases,” including “…forbid[ding] public gatherings when deemed necessary to control outbreaks or epidemics.”
But the Wisconsin legislature did not include an enforcement mechanism for local health officers. Dane County’s ordinance did: It granted the unelected Dane County public health officer unilateral rulemaking authority to issue orders with civil forfeiture penalties between $50 and $200 for each day a violation exists. If the penalties are not paid, a violator could even be jailed.
Under a robust nondelegation doctrine, both the state statute and county ordinance are unconstitutional and overly vague transfers of power. Our duly elected officials should not delegate broad legal authority to unelected “experts” and political appointees to craft binding rules as they please, with little to no accountability to the people they serve.
A fractured decision
In a 3-1-3 split of the Wisconsin Supreme Court—three voting in favor of upholding the local health officer’s delegated authority, one justice agreeing with the result (but not the reasoning) to create a majority, and three dissenting—the court zeroed in on the nondelegation doctrine.
Pacific Legal Foundation filed an amicus brief arguing that this case represents a ripe opportunity to reinvigorate Wisconsin’s nondelegation doctrine. We urged the court to implement a meaningful substantive test that looks at the breadth of legislative power granted, as well as the constitutional role of government official receiving the delegated authority, before examining whether procedural safeguards accompanying the delegation are sufficient to maintain the separation of powers. Our brief tied recent nondelegation scholarship focused on state constitutional jurisprudence to older, but still viable, Wisconsin precedent.
Unfortunately, the majority of the Wisconsin Supreme Court held that the delegation possessed “particularly strong” procedural safeguards. The three justices who signed the plurality opinion found the legislature’s ability to amend or repeal the statute, and the state courts’ ability to review an order for reasonableness, were particularly strong protections against executive branch overreach.
But legislatures always maintain the ability to correct their constitutional mistakes by taking back their legislative authority. That doesn’t mean courts should ignore inappropriate delegations of power.
The three dissenting justices in Becker certainly didn’t ignore Dane County’s inappropriate delegation. “The facts illustrate the raison d‘être for the nondelegation principle: protecting the people from governmental encroachments on their liberty,” Justice Rebecca Grassl Bradley wrote in her dissent, joined by Chief Justice Patience Roggensack and Justice Annette Ziegler.
Not surprisingly, when the people consented to submitting to the rules that will govern society, they carefully confined the exercise of such awesome power to those whom they elect.
Should others attempt to rule over the people, their actions are beyond the law, even if they bear the imprimatur of a legislative body. Legislators have no power to anoint legislators; only the people do.
Wisconsin law “cannot […] override the constitutional constraints on the delegation of the lawmaking power,” the dissenting justices wrote. They noted that “the greatest threats to our system of constitutional liberties may arise when the ends are laudable and the intent is good. However well-intentioned, a government official who employs her powers to prohibit families from enjoying Thanksgiving dinner together and who threatens hefty financial sanctions for noncompliance has become the people’s master rather than their servant.”
The future of nondelegation
Although these justices composed the dissenting opinion—leaving the county’s claims against A Leap Above Dance studio unresolved—there’s still a glimmer of hope for the future of nondelegation in Wisconsin. While concurring Justice Brian Hagedorn didn’t see the Becker case as a good opportunity to revisit the nondelegation doctrine, he emphasized that the court should revisit nondelegation in the future.
That’s an encouraging sign: Ultimately, four of the seven justices on the Wisconsin Supreme Court recognize how crucial it is for courts to reinvigorate the nondelegation doctrine. Elected politicians are incentivized to pass on difficult responsibilities to literally anyone else, especially “experts,” and especially during emergencies. The nondelegation doctrine is, as Peter Wallison writes in National Review, “the only realistic way to arrest the gradual slide of our government into the hands of the administrative state.”
The question is likely not whether America will see widespread implementation of the nondelegation doctrine, but when and what its jurisprudence will look like.
Ethan Yang is a 2022 law clerk at Pacific Legal Foundation.