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An affiliate of Wisconsin Manufacturers & Commerce

Separation of Powers

Vaccine Mandate Litigation
Court: United States Court of Appeals for the Sixth Circuit
Status: Awaiting Opinion/Decision
WMC Involvement: Amicus
More than 30 lawsuits were filed in November 2021 over OSHA’s emergency temporary standard (ETS) that mandated COVID-19 vaccinations or regular testing for workers at businesses with 100 or more employees. The WMC Litigation Center filed an amicus brief in the U.S. Court of Appeals for the Seventh Circuit to support a lawsuit filed by the Wisconsin Institute for Law and Liberty, which asked the court to block this OSHA ETS. The Judicial Panel on Multidistrict Litigation subsequently conducted a lottery and selected the U.S. Court of Appeals for the Sixth Circuit to decide all of the nationwide lawsuits regarding this vaccine mandate. Our amicus brief was subsequently transferred to the Sixth Circuit for that court’s consideration.

Tavern League of Wisconsin, Inc., et al. v. Angela Palm, et al.
Court: Wisconsin Supreme Court
Status: Case Closed
WMC Involvement: Amicus
This case challenged a statewide emergency order purporting to place capacity limits on certain businesses. Following some procedural wrangling at the circuit court, the court of appeals ordered the circuit court to issue an injunction against enforcement of the emergency order. The state appealed to the Wisconsin Supreme Court. WMC submitted a brief to weigh in on some of the important separation-of-powers issues present in this case.

Container Life Cycle Management v. DNR
Court: Wisconsin Supreme Court
Status: In Briefing
WMC Involvement: Amicus
This case involves a right fundamental to our government’s separation of powers: the right to judicial review of an executive-branch agency’s decision. In this case, the Wisconsin Department of Natural Resources (DNR) sent letters to a business informing it that, in DNR’s view, it was required to obtain a time-consuming and expensive permit. The business filed this lawsuit to challenge that determination. The Milwaukee County Circuit Court and Wisconsin Court of Appeals decided that the business had no right to judicial review at this stage in the process, reasoning that DNR had not made a “final” decision.

After the Wisconsin Supreme Court granted the business’s petition for review, the WMC Litigation Center filed an amicus brief in support of the business.

Clean Wisconsin, Inc., et al. v. Wisconsin Department of Natural Resources, et al.
Court: Supreme Court of Wisconsin
Status: Case Closed
WMC Involvement: Intervenor/Co-Appellant
This case involved questions of interpretation of 2011 Wisconsin Act 21, a significant regulatory reform adopted almost a decade ago. Act 21 limits agency authority to the explicit language of that agency’s enabling statutes.

DNR abided by Act 21 and followed its explicit statutory authority in granting a total of 9 high capacity well permits. Clean Wisconsin and others sued DNR, claiming that the agency was also able to use non-explicit grants of authority, and in fact, was required to take into consideration other factors when deciding whether to issue those high capacity well permits.