Politics & Policy

A Constitutional Affront by Wisconsin’s Attorney General

Wisconsin Attorney General Josh Kaul speaks during a news conference following the police shooting of Jacob Blake in Kenosha, Wis., August 26, 2020. (Stephen Maturen/Reuters)
The Attorney General’s power grab destroys liberty and must not be allowed to stand.

Wisconsin’s attorney general seeks to rob the state’s citizens of their sovereignty. He is trying to grab power that does not belong to him and wants to make mischief while avoiding oversight. This lawless behavior — aimed today at Wisconsin’s farmers and tomorrow at small towns — must be checked.

The Wisconsin Department of Natural Resources and Attorney General Josh Kaul oppose a number of Wisconsin farmers in a legal dispute that focuses on high-capacity wells. The specific questions in that dispute are whether Wisconsin farmers can use high-capacity wells and under what conditions. (A high-capacity well is one that can withdraw more than 100,000 gallons a day.) These wells are critical to many of Wisconsin’s farmers, who use them to irrigate crops and to raise livestock. (Many small towns also use high-capacity wells.) While access to such wells is important during a “regular” farming cycle, if there is such a thing, it is even more so during times of drought, when deep, high-capacity wells can serve as their only sources of water. Simply put, access to high-capacity wells can make the difference between prosperity or destitution for Wisconsin farmers.

The attorney general seeks to avoid laws intended in part, to protect those farmers. The Wisconsin legislature passed a series of laws that expressly define the conditions under which the DNR can grant or deny permits to build and operate high-capacity wells. But the attorney general wants the power to ignore that legislation and make the law as he sees fit. He wants the DNR to have the power to impose non-legislative conditions on farmers who seek high-capacity wells. He believes he is a better steward of the people’s waters, and the environmental impacts to them, than the legislature, farmers, and the people themselves.

The broader dispute goes beyond farmers, however. It effects every Wisconsinite’s liberties and raises fundamental questions about government power. Does Wisconsin’s legislature, elected by the people in their sovereign capacity, make the law? Or can an unelected state agency — unmoored from legislative control, and against the express wishes of Wisconsin’s elected officials — make law? Reversing the state’s legal position in the middle of an ongoing lawsuit, Kaul seeks power through unchecked administrative control.

Those in power cannot and must not make law that way. Government power comes from the consent of the governed. Through the Wisconsin constitution, we consented to be governed by legislators and elected officials, those whom we can hold accountable. By seeking to ignore the legislature (and a formal opinion of the previous attorney general), Kaul seeks to take power that does not belong to him and give it over to the DNR (and keep some for himself). That power belongs to the people and, in turn, to the legislature they elect. The attorney general may not make law that contravenes what the legislature has declared. Even if he was motivated by good intent, the inescapable fact is the constitution clearly makes the legislature supreme over the bureaucracy.

To make matters even worse, he does not want Wisconsinites to know how he arrived at this decision. He has claimed the power to avoid open-records laws that none of his predecessors dared claim.

He changed the state’s legal position during the dispute, and those affected, reasonably, want to know why. When they asked, the attorney general essentially told them to pound sand. The Wisconsin Department of Justice has refused to turn over documents that would shed light on its decision to change legal positions, claiming attorney-client privilege. That privilege is important, but it can also be used inappropriately to shield government actors from embarrassment and scrutiny. That is the whole point of open-records laws — to hold government actors accountable and to prevent them from abusing their power.

When asked to identify the client who claimed the privilege, the DOJ responded that the DOJ itself was the client. In other words, the DOJ claimed the right to refuse open-records requests on behalf of itself. It’s like the constitution “pleading the Fifth” on itself, to itself. If the DOJ is its own client and can assert a privilege to avoid turning over documents, there is little (other than judicial challenges) stopping it from skirting Wisconsin’s open records laws.

These actions set a terrible example when people want greater, not less,  institutional transparency. Ironically, Kaul recently stated: “It’s important that we lead by example. With today’s announcement [on a separate topic], we are re-affirming the importance of transparency in government.” He was correct — at least there. The office must lead by example. Here, it failed.

That we must protect Wisconsin’s God-given natural resources, such as our water, is manifest. That we must also maintain fidelity to the Wisconsin constitution and to the people’s sovereignty is equally so. The attorney general’s power grab destroys liberty and must not be allowed to stand.

Ryan J. Owens is a professor of political science and faculty affiliate in the Law School at the University of Wisconsin-Madison, and the director of the university’s Tommy G. Thompson Center on Public Leadership.

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