In 2018, shortly after Democrats Tony Evers and Josh Kaul won their respective races for governor and attorney general in Wisconsin, Republican lawmakers made moves to strip away some of the authority and powers of the two positions.
During the “lame duck” period in 2018 — where elections had concluded but the newly elected officials had not taken their positions — Republicans passed laws to limit the influence of the governor and attorney general before Evers and Kaul stepped into power.
Lawsuits have been brought against these aptly named lame duck laws, and the controversy continued after Evers and Kaul both won their reelections this past fall. In 2019, the Wisconsin Supreme Court ruled that Republican lawmakers were within their rights to have created and passed the laws that they did during their lame duck session. In 2020, the court also ruled that the laws did not infringe upon the separation of powers and did not unconstitutionally strip powers away from the executive branch.
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In 2021, Kaul and the Department of Justice filed another lawsuit in Dane County, arguing that the legislative branch had overstepped its bounds and was restricting Kaul and the executive branch from performing their respective duties. One of the major focuses of the case is that the Joint Committee of Finance, which is run by Republicans, has to approve civil lawsuit settlements that the Department of Justice has agreed to.
This means that if the Republican-controlled budget committee doesn’t approve of one of the civil actions or suits that Kaul and the DOJ settle on, they can reject and invalidate it. After hearing the case, Dane County Circuit Court Judge Susan Crawford sided with Kaul and the DOJ, stating that the legislature had overstepped its bounds.
The significance of this legal battle is that it endangers the system of democracy that we have built and deepens the partisan divide that has been gradually increasing for decades.
The Republican legislature created these lame duck laws once the 2018 elections had concluded. They realized that the governor and attorney general would be Democrats and would be working contrary to the interests of their party.
By passing these laws, the Republican legislature overstepped and exacerbated two problems. The lame duck laws furthered the ever-deepening partisan divide within the state and nation at large while also abusing the power of one of the three branches.
For the past several decades there has been a deepening partisan divide within the United States and that is clearly seen, as the Republican legislature did everything in its power to limit the power of incoming Democrats in the executive branch.
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Competition between political parties has existed since the inception of the nation, with the Democratic, Republican and Federalist parties being founded in the 1790s. Political competition is good — to a certain extent. It allows individuals and parties to make compromises, advocate for different laws and regulations and gives the American people choices for who they want to represent them.
The Republican-majority legislature limiting the powers of Democrats in the executive branch, however, is more than political competition — it is threatening the delicately crafted system of checks and balances that allows American democracy to thrive. This system was created to give the three branches of the government equal power to ensure that one would not become stronger than the other two.
Stripping away executive privileges because political rivals are coming into power is a brash and dangerous move. Setting up obstacles to prevent political rivals from enacting policies or laws that are contrary to your interests is one thing but to begin to try and limit the powers given to different branches of the government is a slippery slope. The Republican party attempting to make structural changes to the system of government based on the political climate is concerning for the future of a balanced democracy.
It is likely Evers and Kaul will continue to pursue legal action against these lame duck laws that restrict their executive powers. Further, when the Wisconsin Supreme Court originally ruled in favor of the lame duck laws, there was a 4-3 conservative majority on the court.
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But conservative Justice Patience Drake Roggensack’s final term expires in 2023. If a liberal justice fills the vacant seat, then the laws will likely be overturned, and the powers the legislature currently wields will be revoked.
The United States and its system of government have been carefully crafted to ensure that the three branches remain balanced and that one does not grow too powerful. When one branch oversteps, it rocks the boat of the American government and that can have dangerous repercussions. To ensure the integrity of checks and balances, the Wisconsin Supreme Court must recognize the lame duck laws as unconstitutional.
Josh Standal ([email protected]) is a junior majoring in history.
