Wisconsin courts for decades have chosen to defer to the interpretations of state statutes offered by administrative agencies, even when those agencies are enforcing those statutes against private citizens.  But the Wisconsin Constitution states that the judicial power – including the power to have the final say on awhat a statute means – resides exclusively in the courts, not the executive branch.  Legal scholars have recently begun to question whether the practice of deferring to agency interpretations of statutes violates separation of powers principles.

So have some judges.  Multiple justices on the Wisconsin Supreme Court have expressed skepticism of agency deference, and in three cases (dealing with separate substantive issues we expressed no opinion on), the court expressly asked for briefing on the deference question.

On our own behalf, we filed two amicus briefs arguing that court deference to agency interpretations of state statutes is unconstitutional.  The Wisconsin Supreme Court decided that courts will no longer defer to agency interpretations of state statute, concluding that such review will now be de novo.  In doing so, two justices concluded that agency deference is unconstitutional, and two concluded that deference should be eliminated as a practical matter.