Becker v. Dane County

No. 202 1 AP 1343, 2021, AP 1382

The Wisconsin Institute for Law and Liberty sued Dane County Public Health to prevent them from issuing public health orders during the COVID-19 pandemic. Law Forward is representing an amicus – Professor Julian Davis Mortenson, a University of Michigan Constitutional Scholar and Expert on constitutional history. The case challenges the Dane County public health officer’s authority to issue orders to protect public health during a pandemic. In January, the Supreme Court permitted the parties to file additional briefs on whether it should revisit its long-standing rulings regarding the nondelegation doctrine, which would disrupt many of the critical operations of state and local government.

Along with our co-counsel and Professor Julian Mortenson, we filed an amicus brief on February 22, 2022 to explain to the Court that the nondelegation doctrine being proposed rests on untrue assumptions about Constitutional history.

The nondelegation doctrine, which is what WILL is trying to make the issue in this case, is potentially of immense importance. It is a conservative effort to turn the clock back nearly a century, resurrecting Gilded Era law and seeing what happens if we apply it in the 21st Century. This theory, which is being pushed by ultra-conservative Supreme Court Justice Neil Gorsuch, puts Wisconsin once again in the spot light as the state where dangerous anti-government ideas get their start.

A resurrection of the nondelegation doctrine would hamstring government agencies, making it impossible for them to work—to regulate and ensure public safety, public health, and the functioning of government—absent constant, legislative micromanagement; and when the legislature inevitably fails to provide that level of detailed oversight, the result would be that the agencies could not function. This was a serious problem decades ago—it was, in fact, the specific issue that derailed early parts of FDR’s New Deal and led him to consider adding Justices to the Supreme Court—and it would be an exponentially larger problem now, in a world where government agencies do a tremendous amount of the governing and provide most of the services that people depend upon as the work of government. While somewhat arcane, what the WI Supreme Court decides on this doctrine could have far reaching legal implications in Wisconsin and nationally.

Case Timeline


February 22, 2022

Amicus brief filed.

March 8, 2022

The Supreme Court of Wisconsin heard oral arguments in this case. We are awaiting the court’s decision, which should come by the end of the term on June 30.

July 8, 2022

The Wisconsin Supreme Court upheld, in a 4-3 decision, Dane County Public Health’s authority to issue and enforce public health orders when authorized to do so by the Dane County Board of Supervisors. This is an important victory for local governments and public health officials in our state.

The Court did not, however, issue a majority opinion addressing the so-called nondelegation theory, which would have devastating effects on how Wisconsin’s government runs. The plaintiffs in this case wanted the court to rule that the Wisconsin Constitution forbids the legislature from giving local governments any authority to interpret and enforce state statutes for their residents. In the only section of the lead opinion not joined by Justice Brian Hagedorn, Justice Jill Karofsky explained that under decades of Wisconsin jurisprudence, the Dane County ordinance at issue presented no problems for the balance of powers between the branches of government. The legislature appropriately decided to delegate to local governments the authority to address certain public health crises, and Dane County exercised that authority lawfully. In an often vitriolic dissent, Justice Rebecca Grassl Bradley urged a full-scale reimagining of the nondelegation theory that would strike down the Dane County ordinance as unconstitutional, and dramatically curtail the authority of local governments around the state, and have far-reaching consequences for other areas of government. In concurrence, Justice Hagedorn declined to expand the nondelegation theory here but explaining that he remains open to arguments grounded in the framers’ understanding of Wisconsin’s 1848 Constitution.

Law Forward believes that local governments and administrative agencies play a crucial role in our democracy. They are often the most responsive units of government, and are more informed on the communities they serve. We will continue to monitor efforts from the right to attack the functioning of our state and local governments using the long-discredited nondelegation theory.

Amicus Brief, Good Governance

Wisconsin Supreme Court