“Rule making” and the administrative state; teacher mulligans

Lucas Vebber and Daniel Suhr:

We are not here to argue anything is wrong with the policy choices made in these documents; indeed many may provide the type of regulatory relief that is sorely needed, especially right now. Ours is a purely procedural, legal point — all of this regulation-by-guidance should have been done by emergency rulemaking. It is both unfair and illegal to issue mandates on the regulated community by guidance. It creates legal uncertainty for citizens, increases their exposure to lawsuits, and undermines basic democratic principles. Emergency rulemaking is a preexisting statutory scheme that preserves transparency, accountability, and due process while providing nimble, fast response times for policy-makers.

An emergency rule, by definition, is a rule that must be quickly promulgated because “preservation of the public peace, health, safety, or welfare necessitates placing a rule into effect” faster than the traditional rulemaking process would allow. This process ensures that there is still minimal oversight and public involvement, while still allowing agencies to quickly react to emergency situations. The emergency rulemaking process stands in stark contrast to the Evers administration’s regulating-via-guidance documents, tweets, and press releases that we’ve seen in recent weeks.

The emergency rulemaking process is fairly straightforward, and allows agencies to promulgate new regulations without abiding by the statutorily mandated notice, comment and publication requirements for regular rules. The emergency rulemaking process goes like this: (1) the agency drafts a scope statement, which must be approved by the governor and sent to the legislature and to the Legislative Reference Bureau for publication in the administrative register; (2) the agency can hold any public hearing on the scope statement, if directed by the legislature; (3) the agency will draft the regulation; (4) the agency sends the draft regulation to the governor for approval; (5) and finally, the agency publishes the rule. The rule is effective immediately upon publication, unless it states otherwise. The whole process can take less than two weeks from start-to-finish, and the rule is valid for 150 days, unless extended by the legislature.

Once published, the rule is subject to legislative oversight. For example, the legislature could choose to suspend the rule at any time, or could simply allow it to expire at the end of its 150 days. The agency is also required to prepare a fiscal estimate for an emergency rule – adding to transparency. If the rule will have a significant effect on the private sector, the fiscal estimate must include “the anticipated costs that will be incurred by the private sector in complying with the rule.”

Related: The Wisconsin DPI, long lead by Governor Evers, granted thousands of elementary reading teacher content knowledge waivers. “Mulligans”.

This, despite our long term, disastrous reading results.