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On Friday, on behalf of former Speaker of the Assembly Scott Jensen and state Representative Jason Fields, WILL filed an amicus curiae brief in support of 2011 Act 21, which allows the governor to veto proposed rules from government agencies. The brief, accompanied by a motion asking the court to accept the brief, was filed in the state Court of Appeals District IV.
Last October, the Dane County Circuit Court held that Act 21, as applied to the Superintendent of Public Instruction, violated the Wisconsin Constitution, Article X, Section 1, which grants the Superintendent the duty of supervision of public instruction. “In its holding, the Dane County Circuit Court made the unfounded claim that the Superintendent has a constitutional right to make public policy,” said CJ Szafir, Education Policy Director at WILL. “But we know from history that this cannot be. Like other non-supervisory powers, the legislature gave the Superintendent the ability to make rules, so they are well within their right to put restrictions on rulemaking – or even take it away completely.”
WILL filed on behalf of Reps. Jensen, a Republican, and Fields, a Democrat, because they wanted to protect the integrity of the legislature to be able to pass constitutional reform of the rulemaking process, such as Act 21. “Whether – and to what extent – the agencies have the ability to make regulations is a public policy decision made by the state legislature. It is not for the courts to second-guess such a decision,” said former Speaker Scott Jensen.
Act 21 changed the law relating to state agency rulemaking in various ways that limit the power of state agencies to regulate Wisconsin citizens. Explained Jason Fields, “In recent years, the legislature has enacted historic education reforms, such as allowing more charter school authorizers and expanding school choice. We can’t afford to see these gains jeopardized by agencies imposing more rules and regulations on Wisconsin schools and families.”
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