If Wisconsin GOP Tries To Appeal 'Extraordinary Session' Ruling, They Expose Themselves As Hypocrites

The ruling is a "strict constructionist" look at the Constitution — a doctrine Republicans typically adhere to (except when it goes against what they want, apparently)

Dane County Circuit Judge Richard Niess ruled on Thursday that the lame-duck power grab "extraordinary" session, used by Republicans at the tail-end of 2018, violated provisions of the state Constitution when it stripped away powers of the executive branch after Democrats, including current Gov. Tony Evers, had won in the midterm elections.

The power grab was blatantly political, a maneuver that only took place because former Gov. Scott Walker had lost his re-election bid. Had he won instead, it's unlikely Republicans would have sought to remove these powers from executive leaders.

The political motivations, however, did not compel Judge Niess to render lawmakers' actions unconstitutional. Rather, the way in which the legislature convened itself did.

But before we get into that, let's talk about Constitutional theory, because it's important to understand how some people — namely conservatives — think.

The Wisconsin Constitution
(Public Domain Image)

There are two schools of thought when it comes to how a Constitution works. The "living document" idea posits that a Constitutional document evolves over time. As judicial rulings and changes to society come about, judges should interpret the document based on the belief that the Constitution itself has to change as time goes by, too. Liberal judges tend to follow this line of thinking.

This is our common law tradition of jurisprudence, and it is how the founders intended our government (and judicial branch) to work. But there's a separate, more restrictive view of how a Constitution ought to be considered in court cases, and that's the "strict constructionist" model.

This belief holds that what a Constitution says should be only how a judge should rule. Other judges' rulings, the adherence to stare decisis, or the changing attitudes and technologies of society, shouldn't matter when rendering a decision. Only the strict wording of the document matters, no ifs, ands, or buts. Typically, conservatives are the ones who espouse this view.

Why do I go into this Constitutional lesson before I discuss Thursday's ruling? Judge Niess can be considered a liberal judge. He was appointed by a Democratic governor in 2004 when a vacancy opened on the court he serves, and has won re-election to that post in liberal-leaning Dane County ever since. But the ruling he rendered on Thursday is anything but a "living document" look at the issues at hand — Niess's ruling instead takes a "strict constructionist" point of view, which could cause headaches for Republicans seeking to have it overturned.

Niess was asked to consider whether the Republican-led legislature, which convened itself in an "extraordinary session" last fall, had done so in a Constitutional way. The state Constitution lays out very plainly the ways in which a legislature can be convened beyond their regular schedule — and it does not, Niess pointed out in his ruling (PDF), include a means for the legislature to do so on its own.

The state Constitution allows for special sessions to occur when the governor calls for them. In no part of the Constitution does it state that the legislature has the right to convene a session on its own, unless it has planned for one at the beginning of the legislative session.

Walker didn't convene the session — the legislature did. Therefore, the entirety of the extraordinary session is deemed unconstitutional, because it met in an illegal manner.

The ruling by Niess, of course, goes into greater detail than a blog post can allow, but the essential argument one that Republicans, if they try to go against it, will have a hard time defending.

On the one hand, they don't want their legislation from the extraordinary session to be null and void. On the other hand, if they try to fight this ruling, they'll expose themselves as hypocritical, as going against a "strict constructionist" reading of the state Constitution.

The bottom line is this: there's no provision in the Constitution to allow for the legislature to call itself into extraordinary session. That rule serves as a check-and-balance type measure, requiring the governor to call into session the legislature in order to do so.

The legislature called itself into session, violating the Constitutional provision for how sessions can be convened. If you read the document in a strict way, that's the only way it can be interpreted.

Featured image credit: Public Domain/Wikimedia Commons

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