December 30, 2020 at 3:21 p.m.
The Administrative Man
The Administrative Man
From refusing to hear Donald Trump's election challenges because the president had the audacity to bring his complaints about election law violations after they happened rather than before he was actually aggrieved to wanting to give Department of Health Services secretary Andrea Palm dictatorial powers to make laws on her own and throw people who didn't abide by them in jail, Hagedorn has been a real wild ride.
Where once people thought of liberty when they thought of Hagedorn, they now think of liberal. To say that he has disappointed conservatives is an understatement, to say the least. Liberals are overjoyed, which is why they have given him platforms on their favorite propaganda networks - The Cap Times - to help him out.
So just what is with this guy? We don't know, but one thing is for sure. He is either a con man, or really, really dumb, or an old throwback conservative from a time a half-century ago when country club Republicans and martinis were still a thing.
There is evidence for all those options, and they could overlap.
It's possible Hagedorn just stuck his finger in the air this year and decided the wind was blowing to the left. After all, this is the judge who, while running for his seat on the bench, did a 180 on his belief that the U.S. Constitution gives states the right to decide issues such as school prayer and that a state could actually declare its own official religion.
The campaign cured him of all that talk. His back flip in the Milwaukee Journal Sentinel as he proclaimed against states being able to establish official religions was a work of circus art, aka a flimflam.
So ain't no telling what Hagedorn will believe tomorrow, though the recent success of liberal Supreme Court candidates since his own election could tell the tale.
Of course, there's the dumb-as-a-box-of-rocks theory. In the Trump challenge, which the high court considered as an original action, Hagedorn pointed to a state statute that provides an "exclusive judicial remedy" for such cases, a remedy that begins in circuit court, not in the Supreme Court.
And that, he wrote, is where the case should be. Only he overlooked the state constitution, which gives the Supreme Court the right to have original jurisdiction over any state court matter: "The supreme court has appellate jurisdiction over all courts and may hear original actions and proceedings."
Hey Brian, the state constitution trumps the statute, which isn't inconsistent with original jurisdiction anyway. Hagedorn's habit of ignoring or forgetting about the constitution has become his most annoying trait.
In the story we report today, there are other nuggets of nattering nonsense, some of which we will get to. Suffice it to say we need to leave the door open on the dumbbell theory.
Then there's the throwback theory, and there is a lot of evidence for that, as the story in today's edition explores. Put another way, Hagedorn seems to be stuck in an era sometime between Richard Nixon and Ronald Reagan, when the goal of conservative jurisprudence was to obstruct liberal judicial activism by endowing the administrative state with as much power as possible.
Why in the world? Well, giving agencies due deference - their interpretations win if they are merely reasonable, even though other reasonable interpretations may exist - was a pretty good way, if not a perfect one, to curtail such activism, and conservatives thought GOP presidents (who held the White House for 28 of 40 years between 1953 and 1992) could hold agencies accountable.
They couldn't and didn't, but that's a different story.
But there Hagedorn is, still looking through those establishment GOP rose-colored lenses, and it's even worse than that. He is not only going after judicial activism - where liberal judges write and rewrite law - but also judicial review, where courts actually do their jobs and decide what the law is in contested situations.
He wants to throw out the baby with the bath water.
For instance, and germane to the Trump election challenge, the aforementioned original jurisdiction allows the high court to undertake judicial review by asserting original jurisdiction over any matter in the state courts, but, as noted, Hagedorn seemed conveniently unaware that the constitutional provision existed.
To Hagedorn, "the people have not empowered this court to step in and impose our wisdom on proper governance during this pandemic; they left that to the legislative and executive branches," but we hasten to add that neither have the people empowered the court to ignore its responsibilities and duties.
A review of Hagedorn's opinions, both concurring and dissenting, shows just how far he will go to stretch his judicial philosophy to maintain and grow the power of the administrative state.
In the Andrea Palm decision, in which he would have allowed Palm's order confining people people to their homes, prohibiting nonessential travel, and closing nonessential businesses to stand, Hagedorn took issue with the doctrine of non-delegation, which means branches of government cannot delegate core powers to other branches.
Then justice Daniel Kelly cited the doctrine in saying the Legislature simply could not delegate legislative power to Palm, which she clearly exercised when she issued all those directives single-handedly, backed up by the threat of jail.
Thus, she exceeded her statutory authority by not going through the rule-making process, Kelly opined. But, Hagedorn reminded the court, if she had gone through the rule-making process, that act itself would violate the non-delegation doctrine. Since rule making is a legislative act, he wrote, the Legislature was delegating its power to her: "If we are to return to a vision of the separation of powers that does not allow delegation from one branch to another, how in the world can we support that proposition and at the same time hold that secretary Palm is required to submit to rule making, a process that is premised, lo and behold, on the delegation of legislative power to the executive branch?" he asked.
Well, that's simple. The court could return to that vision because rule making is not a legislative act but an executive one. When an executive agency undertakes rule making, it is undertaking the details of executing and enforcing the law; it is not making law, and any policy with the force of law that is required under rule making is not decided by the agency but by the Legislature through approval or disapproval.
In "Interring the Non-delegation Doctrine," Eric Posner and Adrian Vermeule, writing in the University of Chicago Law Review, maintain that a statutory grant of authority to the executive branch or other agents can never amount to a delegation of legislative power.
"A statutory grant of authority to the executive isn't a transfer of legislative power, but an exercise of legislative power," they wrote. "Conversely, agents acting within the terms of such a statutory grant are exercising executive power, not legislative power."
The authors citied multiple court cases negating the idea that rule making itself is a legislative act, such as United States v Grimaud, and Railroad & Warehouse Commission v Chicago,Milwaukee & St. Paul Railroad Co.
Simply put, an executive exercises legislative power only when creating rules with the force and effect of law without any constitutional or statutory authority to do so. That is exactly what Palm did, and the Legislature wanted the court - as it should have - to correct an obvious case of exceeding statutory authority. Despite Hagedorn, the court acted correctly.
Likewise, Hagedorn asserted that, under the non-delegation doctrine, if the Legislature conferred too much undefined power in the statute ("The department may authorize and implement all emergency measures necessary to control communicable diseases"), then the statute itself should be declared unconstitutional because it was not constitutionally capable of being enforced.
That's baloney. The statute is over broad, to be sure, and should be rewritten, but the department could easily satisfy constitutional requirements by simply submitting those emergency measures to emergency rule making, which it is statutorily supposed to do. The statute may not say emergency rule making is required, but other statutes do make it clear, and it should be obvious that the statute assumes that no department can acquire unconstitutional and dictatorial powers.
One last point. In the Palm decision, Hagedorn goes on and on about the Legislature's standing, or lack thereof, to bring the case: "It cannot be that the legislative branch has standing to sue the executive branch on the grounds that the Legislature itself violated the constitution when it passed certain laws."
Only those injured directly could bring such a case, he opined.
First off, that's not what the Legislature did, though in his misreading of the non-delegation doctrine, Hagedorn thought that's what it had to do. But even if it did, the Legislature certainly had standing to bring the case.
First, as chief justice Patience Roggensack observed, because Palm's order was promulgated without following required statutory procedures and thus impinged upon the Legislature's constitutional core power, the Legislature was directly injured because it's core power to legislate, to write and pass our laws, had been usurped.
Indeed, In Arizona State Legislature v. Arizona Independent Redistricting Commission, the U.S. Supreme Court decided that the Arizona state Legislature had standing to challenge the constitutionality of a redistricting commission that was created by a ballot initiative. They did, the court ruled, because the Legislature as an institution had an interest in redrawing the congressional districts for Arizona that the Legislature could sue to protect.
Likewise, in this case, the Legislature, which brought the case as an institution, certainly had standing because its institutional interests and powers were being taken over by a single agency head.
Let's put the issue another way. When the state acts dramatically to confine you to your home, to close your business, to prohibit you from having people over for dinner, to ban you from traveling, should the people's elected representatives make that call, or should a single agency bureaucrat make that call?
Obviously, the Legislature's institutional interests were harmed, which is to say that all of our democratic interests and liberties were harmed.
All of this is a no-brainer, but in every case and on every point Hagedorn turns and twists the law to grant ever more power to the administrative state and to drain from the other branches of government any ability to provide checks and balances of that power.
It's hard to say whether Hagedorn's machinations are by design or truly reasoned, whether he is a cagey politician or in over his head. But what's clear is Brian Hagedorn is a devotee of the administrative state, a conservative at heart, maybe and perhaps, but marooned in another age if that is so.
In an insightful sentence in his Palm dissent, Hagedorn wrote that "the judiciary must never cast aside our laws or the constitution itself in the name of liberty."
In other words, liberty should never get in the way of what the state wants to do, never mind that the constitution enshrines that liberty and it is Hagedorn himself who casts aside the constitution.
Fellow justice Rebecca Bradley found that statement by Hagedorn to be shocking, and she summed it up best: "Spurning more than two centuries of fundamental constitutional law as well as the Wisconsin Constitution's guarantee of liberty, justice Brian Hagedorn shockingly proclaims 'the judiciary must never cast aside our laws or the constitution itself in the name of liberty.' Setting aside the self-contradictory nature of that statement, justice Hagedorn's 53-page opinion contains no constitutional analysis whatsoever, affirmatively rejects the constitution, and subjugates liberty. The Wisconsin constitution IS the law - and it reigns supreme over any statute."
True, but not in Brian Hagedorn's world. In his world, the administrative state is the law, whether it is an election official or a public health bureaucrat.
He is the definitive Administrative Man. He's Mr. Deference, as far away from a constitutionalist and an originalist as one can get.
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