In 1964, U.S. Supreme Court Justice Potter Stewart used this phrase to describe how he knew something was obscene: “I know it when I see it.”
Potter’s vague definition could become the unofficial Wisconsin Supreme Court motto, if it keeps ruling against Gov. Tony Evers. The Supreme Court’s conservative majority has ruled against the Democratic governor three times in eight weeks.
Consider the court’s July 10 finding that three Evers partial vetoes of the 2019-21 state budget, passed by Republicans, were illegal.
Why were they illegal? “We know illegal vetoes when we see them.”
Writing for the court, Chief Justice Pat Roggensack noted:
“No rationale has the support of a majority. However, a majority has reached a conclusion with respect to the constitutionality of each series of vetoes.
“Five justices conclude that the vetoes to the school bus modernization fund are unconstitutional. The same five also conclude that the vetoes to the local roads improvement fund are unconstitutional. Four justices conclude that the vetoes to the vapor products tax are unconstitutional. Five justices conclude that the vetoes to the vehicle fee schedule are constitutional.”
Dissenting, Justice Ann Walsh Bradley noted that the five- and four-justice majorities offered no guidance on governors’ powers to partially veto spending bills passed by the Legislature.
In 1930, voters gave governors partial veto authority over spending bills. But after former Govs. Tony Earl and Tommy Thompson used partial vetoes to creatively delete letters, figures, words and sentences and then stitch what was left to create pet programs, voters twice limited those partial-veto powers.
In its July 10 ruling, the court could have clarified what governors can and cannot do with partial vetoes.
Instead, Walsh Bradley noted, “In an important case like this … we instead sow confusion.”
“Evidence of the lack of clarity is highlighted by the very fact that this case has generated four separate (opinions) with various rationales. And not one of them has garnered a majority vote of this court. Thus, we are left with no clear controlling rationale or test for the future.”
One phrase from Roggensack’s decision—“I break no new ground with this decision”—seemed to agree with Walsh Bradley.
Evers and his chief lawyer, Ryan Nilsestuen, have said the court offered no guidance on another critical question—what exactly are the emergency powers of a governor?—when it struck down the safer-at-home order of Health Services Secretary Andrea Palm on May 13.
To fight the spread of the coronavirus, Evers had Palm issue an order requiring residents to stay home, close businesses and limit the size of gatherings.
But a Supreme Court majority ruled Palm could not issue that order without complying with the lengthy rule-making process, which includes giving the public and Republicans who control the Legislature a chance to object. The lawsuit challenging Palm’s order was filed by Republican legislative leaders.
Translation: “We know a cabinet secretary acting illegally when we see it.”
But, the court specifically added, “This case is not about Gov. Tony Evers’ Emergency Order or the powers of the Governor.”
For his part, Evers has refused to defy the Supreme Court’s May 13 order, saying he has no confidence that any new order would survive another legal challenge by Republicans.
In his official statement on the Supreme Court ruling, Evers said: “Republican legislators have convinced four justices to throw our state into chaos.”
Thompson, the Republican governor from 1987 until 2001, would have not been intimidated. Thompson’s governing theory was, “Be bold. It’s easier to ask for forgiveness than permission. Don’t apologize unless you’re caught.”
Thompson would have first tried to negotiate an emergency order with legislators, avoiding a lawsuit.
If there was no deal, Thompson would have issued daily COVID-19 emergency orders, sending this public message: “I’m doing all I can to protect public health and safety. If you legislators want to stop me—risking the lives of your family members, neighbors and constituents—I’ll see you in court!”
In its third recent ruling against Evers, the court upheld Republicans’ December 2018 “lame-duck” laws that limited the powers of the incoming Democratic governor and Democratic Attorney General Josh Kaul. Those laws rebalanced power between the executive and legislative branches of state government, the court decided.