State Con Law Case of the Week: How “Explicit” Must the Administrative State Be?

Anthony Sanders · July 16, 2021

Can “explicit” mean “broad”? Or if a law is “broad” is it by definition not explicit? That is, does “explicit” actually mean “specific”? Last week the Wisconsin Supreme Court ruled in a case where the outcome depended upon the answers to these questions. And although the case concerned statutory interpretation, surrounding it were all manner of constitutional issues, including the nondelegation doctrine, the public trust doctrine, and the Lockean relationship between the people and the state.

We won’t give a full analysis here (read the majority and dissenting opinions for yourself in Clean Wisconsin v. Wisconsin Department of Natural Resources), but, briefly, the case concerned whether the Wisconsin DNR should have considered certain environmental factors when it approved permits for some groundwater wells. A prior decision from 2011 concluded the DNR had the authority to consider environmental factors. However, the present case examined the effect of a statute that was passed just before the 2011 decision (and not taken into account then). It states:

No agency may implement or enforce any standard, requirement, or threshold, including as a term or condition of any license issued by the agency, unless that standard, requirement, or threshold is explicitly required or explicitly permitted by statute or by a rule that has been promulgated . . .

Unsurprisingly from a read of this language, the legislature enacted the statute to rein in agencies from imposing licensing burdens that hadn’t gone through a full law-making process, either via statute or at least a formal process of administrative consideration. But the majority ruled that nevertheless an agency can have the authority to “enforce” a “standard, requirement, or threshold” even if the “standard, requirement, or threshold” is not specifically provided for. This is because in delegating “broad” authority to an agency—as the legislature here had done for the DNR—it can be seen as “explicitly” granting that authority through the broad language, including in the case of the consideration of environmental factors at issue in this case. The majority explained “Explicit authority and broad authority are different concepts but not mutually exclusive ones. An explicit phrase can be broad or specific; broad authority can be either explicit or implicit.” (On a side note, along the way the majority invokes the “public trust doctrine” of Article IX, Section 1 of the Wisconsin Constitution, which asserts the state has “concurrent jurisdiction” (along with the United States) over navigable waters. This in some sense only raises the question of whether the legislature has delegated its powers under the doctrine to the DNR. But whatever its relevance to this case it’s a neat provision that has its origins in the Northwest Ordinance and protects travel on interstate waters “without any tax, impost, or duty”.)  

The dissent has none of the majority’s reading of “explicitly.” It states “explicit” means “what any person would reasonably understand it to mean: something ‘[e]xpressed without ambiguity or vagueness’ and ‘leaving no doubt.’” It also discusses recent cases interpreting the very same statute. And fans of Lockean theory and separation of powers will enjoy the rest of its analysis. It questions how, even setting the new statute aside, the original 2011 decision comports with the separation of powers in the Wisconsin Constitution. Citing John Locke, opinions by Justices Gorsuch and Thomas, Richard Epstein, Phillip Hamburger, and various other scholars, the dissent explains how today’s administrative state is not contemplated by either the Wisconsin or federal constitutions.

These issues are, of course, brewing in many places other than Wisconsin, both in statutory cases (like those involving the Auer and Chevron doctrines) and constitutional cases themselves, such as with the nondelegation doctrine. Both opinions in this case are worth reading to get a sense of what’s at stake in these debates. You can read some of our thoughts at the Center for Judicial Engagement about the administrative state here (in IJ’s amicus brief in the nondelegation doctrine case Gundy v. United States).

Anthony Sanders is the director of IJ’s Center for Judicial Engagement.