The Wisconsin Supreme Court Can Restore the Separation of Powers and Lead the Nation Forward

Over the last decade, Wisconsin has been the tip of the spear for monumental policy change. As one commentator put it to me in 2011, “Everything comes out of Wisconsin these days.” Now, the Wisconsin Supreme Court is poised to render a monumental decision that continues the state’s pace-setting ways. Let’s hope a majority can agree to do so.

In Tetra Tech EC, Inc. v. Wis. Dep’t of Revenue, the court can preserve the separation of powers and safeguard our constitutional liberties by cutting back against excessive judicial deference to executive agencies. Put simply, it can declare that judging must constitutionally be left to judges.

At issue in Tetra Tech is a fundamental question of constitutional law, though you might not know it from the humdrum facts of the case. The state Department of Revenue determined that two companies owed the state back taxes. The companies challenged this determination, for reasons irrelevant to this discussion. The court has now been asked to determine whether the agency’s legal determination was correct, which will require deciding how much deference courts must give to agencies’ interpretations of the laws they implement.

Some have argued that the courts must provide “great weight” deference to the agency, upholding any agency decision so long as it is reasonable and not contrary to the clear meaning of the applicable statutes. Unless the agency adopts a crazy legal position, this view holds that courts are supposed to defer to the legal interpretation the agency adopts. Another camp would have the court give the agency “due weight” deference, upholding any reasonable agency interpretation of the law that comports with the purpose of the statute (if there is no more reasonable interpretation). A third camp would say that the court should give the agency no deference, leaving judging to the judges.

If the Wisconsin Supreme Court rethinks judicial deference to agencies, and restores the separation of powers as it recently signaled it is likely to do, the state could once again be the tip of the spear.

Such a decision would be one to applaud. The separation of powers exists to protect our liberties. Splitting the constitutional atom into three separate branches (and then splitting it again into national and state levels) was a genius method the Framers employed to protect our liberties from the suffocating effects of concentrated power. They knew that when one branch of government accrues too much power, the people suffer. After all, it is much easier for outside groups to “capture” one politician or one branch of government than three branches constantly in competition with one another. Likewise, it is easier for a tyrant to take over one branch than three. Allowing the executive branch to devise administrative rules like legislatures and interpret legislation like judges — subject only to cursory review from courts — would empower the executive branch in a manner that promises one day to snuff out liberty. Independent judges should be the final interpreters of the law, not the executive branch. Tetra Tech offers us a way to return to the separation of powers.

To be sure, courts should respect the policy expertise agencies possess. Most judges have little experience with policymaking. They tend to be generalists with little understanding of the intricate and often highly technical issues agencies address. Whereas agencies have the expertise to dive in to technical policy issues, judges do not. They cannot. Instead, they must sit next to the pool with their sunscreen and brimmed hats. But that’s OK. It’s not the judge’s role to dive into technical policy. Judges have their own expertise: the law. Agencies can set policy, which judges should consider and respect. But judges have a job to do, too, and they needn’t defer excessively to executive-branch interpretations of the law.

United States Supreme Court justice Neil Gorsuch made national headlines when he criticized federal courts’ excessive deference to agency interpretations of federal law last year. Court watchers are already examining the Court’s decisions for signs that he might attract a majority of colleagues to his position. In the meantime, Wisconsin is on the cusp of leading that charge for the nation.