On May 13, the Wisconsin Supreme Court addressed the meaning of 2011 Wis. Act 21’s explicit authority requirement in Wisconsin Legislature v. Palm. The majority opinion wrote:
“Formerly, court decisions permitted Wisconsin administrative agency powers to be implied. See Wis. Citizens Concerned for Cranes & Doves v. DNR, 2004 WI 40, ¶14, 270 Wis. 2d 318, 677 N.W.2d 612. In theory, “any reasonable doubt pertaining to an agency’s implied powers” was resolved “against the agency.” Wis. Builders Ass’n v. DOT, 2005 WI App 160, ¶9, 285 Wis. 2d 472, 702 N.W.2d 433. However, the Legislature concluded that this theory did not match reality. Therefore, under 2011 Wis. Act 21, the Legislature significantly altered our administrative law jurisprudence by imposing an “explicit authority requirement” on our interpretations of agency powers. Kirsten Koschnick, Comment, Making “Explicit Authority” Explicit Deciphering Wis. Act 21’s Prescriptions for Agency Rulemaking Authority, 2019 Wis. L. Rev. 993, 997.
“The explicit authority requirement is codified at Wis. Stat. § 227.10(2m), which provides: “No agency may implement or enforce any standard, requirement, or threshold, . . . unless that standard, requirement, or threshold is explicitly required or explicitly permitted by statute or by a rule that has been promulgated in accordance with this subchapter[.]” Furthermore, Wis. Stat. § 227.11(2)(a)1.—3., as summarized by a recent comment in the Wisconsin Law Review, “prevent[s] agencies from circumventing this new ‘explicit authority’ requirement by simply utilizing broad statutes describing the agency’s general duties or legislative purpose as a blank check for regulatory authority.” Koschnick, Making “Explicit Authority” Explicit, at 996. The explicit authority requirement is, in effect, a legislatively-imposed canon of construction that requires us to narrowly construe imprecise delegations of power to administrative agencies. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 225 (2012) (“Interpretive-Direction Canon”: “interpretation clauses are to be carefully followed.”).”
The court concluded:
“As Wis. Stat. § 227.10(2m) directs, unless a rule has been promulgated pursuant to ch. 227 or the DHS action is “explicitly required or explicitly permitted by statute” DHS has no power to implement or enforce its directives.”
You can read more about the case here.