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An affiliate of Wisconsin Manufacturers & Commerce

News: Feb. 8–22, 2019

Editor’s Note: Many of the articles below reflect how separation of powers has broken free from the ivory tower confines of constitutional law classes. In part due to the powerful recitations by  Justice Antonin Scalia, we have a better appreciation of the structural aspects of our federal and state constitutions that provide necessary checks and balances among the respective branches—pitting power against power. (For his insight, you can deep dive here for a 48-page analysis or wade here for a 5-page summary.)

We are now in the throng of a healthy power debate at the federal level as states sue—with the House contemplating same—to invalidate President Trump’s emergency declaration relating to border security. Here in Wisconsin we see the flip-side with groups challenging in court lame-duck enactments moving authorities previously in the executive branch and placing them in the legislative branch. Never has Con Law been so exciting.

Fourth legal challenge filed to GOP lame-duck laws stripping powers from Tony Evers, Josh Kaul
Wisconsin State Journal, Feb. 22, 2019. Republican state lawmakers face a fourth court challenge to laws they passed in a December lame-duck session to curtail the powers of incoming Gov. Tony Evers—this one from the Democratic Party of Wisconsin, contending the laws violate the rights of Democratic activists and voters who elected him.

Survival at the White House
National Review
, Feb. 21, 2019.
 Besides the Washington press and pundit corps, Donald Trump faced a third and more formidable opponent: the culture of permanent and senior employees of the federal and state governments, and the political appointees in Washington who revolve in and out from business, think tanks, lobbying firms, universities, and the media.

House to Vote Tuesday on Resolution Terminating National Emergency
The Wall Street Journal(Subscription Required), Feb. 19, 2019. Democrats move to curtail Trump effort to redirect funds for border wall; House Speaker Pelosi says president is ‘lawless,’

States File Suit Against Trump Administration Over Wall Emergency
The Wall Street Journal (Subscription Required), Feb. 19, 2019.
Sixteen states (not Wisconsin) on Monday filed a federal lawsuit challenging President Trump’s national-emergency declaration to pay for a wall along the U.S.-Mexico border, setting up a showdown with the administration that could go to the Supreme Court and last through the 2020 election. House Democratic leaders are weighing a suit of their own, arguing Congress alone has the power to appropriate funds.

How Congress Can Reclaim Its Power
National Review, Feb. 18, 2019. Put aside the matter of whether Trump’s move is technically legal; many conservatives can agree that it should not be and that the best that can be said is that Congress has given too much power to the president.

Michael Graham: Have Democrats declared a war on cows?  Editor’s Pick
Wisconsin State Journal, Feb. 17, 2019. Reports of the death of America’s beef and dairy industries at the hands of the Green New Deal may be exaggerated, but both farmers and their Philly steak-’n’-cheese-eating fans have reason to be concerned about policies embraced by progressive Democrats.

Democrats Ready to Challenge Trump’s Emergency Declaration
The Wall Street Journal (Subscription Required), Feb. 17, 2019. California Attorney General Xavier Becerra said on ABC’s “This Week” on Sunday that he “definitely and imminently” planned to sue the administration, in concert with several other states, over the president’s emergency declaration Friday.

Left To State Supreme Court Candidate: You Can’t Be A Good Judge Because You’re A Christian Editor’s Pick
The Federalist
, Feb. 16, 2019.
 Judge Brian Hagedorn is being publicly trashed for being on the board of a small Christian school, and for blog posts when he was in law school discussing court cases about abortion and gay sex.

Trump’s Trade Policy Revives Interest In The Non-Delegation Doctrine
The Federalist, Feb. 15, 2019. In the 1962 Trade Expansion Act, Congress delegated the authority to set tariffs to the president. Now, 57 years later, federal judges are contemplating whether Congress gave away too much of its legislative power.

Tony Evers taps more clean water proposals, including closer look at southwest Wisconsin wells
Wisconsin State Journal, Feb. 14, 2019
. Gov. Tony Evers called for  funding to address contaminated wells and a new drinking-water study in three southwest Wisconsin counties where nearly half of wells recently were found to be contaminated.

Wisconsin Supreme Court candidate founded school that allows ban on teachers, students and parents in gay relationships
Milwaukee Journal Sentinel, Feb. 14, 2019. State Appeals Court Judge Brian Hagedorn in 2016 founded and now oversees Augustine Academy in Merton, which partners with Ambleside Schools International, a Christian, college-preparatory school that blends private and home-based education. 

Tony Evers joins group of governors fighting climate change, in part by reducing carbon emissions
Wisconsin State JournalFeb. 13, 2019. The U.S. Climate Alliance, which aims to implement elements of the international Paris Agreement on climate change, includes governors from 20 states including Wisconsin, as well as Puerto Rico.

Gov. Tony Evers continues ‘year of clean drinking water’ with $2 million to remediate contaminated private wells
La Crosse TribuneFeb. 13, 2019. The $1.6 million boost in funding to the Well Compensation Grant Program continues the governor’s initiative to “make 2019 the year of clean drinking water in Wisconsin,” as he announced in his State of the State address.

Liberals eye 2020 takeover of Wisconsin Supreme Court
Wisconsin State JournalFeb. 11, 2019. If the liberal-backed candidate wins the April 2 state Supreme Court race, liberals would be in prime position to take over the court when the next seat comes up in 2020—during a presidential primary when Democrats expect to benefit from strong turnout.

Wisconsin utilities and environmental groups unite behind solar, but regulators question value
Wisconsin State JournalFeb. 10, 2019. Madison Gas & Electric and Wisconsin Public Service Corp. have jointly proposed to buy 300 megawatts’ worth of solar panels at two projects under development along Lake Michigan and in rural southwestern Wisconsin.

What We’re Reading

Scalia on Separation of Powers
Federalist Society, 2016 National Lawyers Convention