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Kaul’s assault on the constitution

Empower Wisconsin | Sept 17, 2020 

By Ryan J. Owens, National Review 

Wisconsin’s attorney general seeks to rob the state’s citizens of their sovereignty. He is trying to grab power that does not belong to him and wants to make mischief while avoiding oversight. This lawless behavior — aimed today at Wisconsin’s farmers and tomorrow at small towns — must be checked. 

The Wisconsin Department of Natural Resources and Attorney General Josh Kaul oppose a number of Wisconsin farmers in a legal dispute that focuses on high-capacity wells. The specific questions in that dispute are whether Wisconsin farmers can use high-capacity wells and under what conditions. (A high-capacity well is one that can withdraw more than 100,000 gallons a day.) 

These wells are critical to many of Wisconsin’s farmers, who use them to irrigate crops and to raise livestock. (Many small towns also use high-capacity wells.) While access to such wells is important during a “regular” farming cycle, if there is such a thing, it is even more so during times of drought, when deep, high-capacity wells can serve as their only sources of water. Simply put, access to high-capacity wells can make the difference between prosperity or destitution for Wisconsin farmers.

The attorney general seeks to avoid laws intended in part, to protect those farmers. The Wisconsin legislature passed a series of laws that expressly define the conditions under which the DNR can grant or deny permits to build and operate high-capacity wells. 

But the attorney general wants the power to ignore that legislation and make the law as he sees fit. He wants the DNR to have the power to impose non-legislative conditions on farmers who seek high-capacity wells. He believes he is a better steward of the people’s waters, and the environmental impacts to them, than the legislature, farmers, and the people themselves.

The broader dispute goes beyond farmers, however. It effects every Wisconsinite’s liberties and raises fundamental questions about government power. Does Wisconsin’s legislature, elected by the people in their sovereign capacity, make the law? Or can an unelected state agency — unmoored from legislative control, and against the express wishes of Wisconsin’s elected officials — make law? Reversing the state’s legal position in the middle of an ongoing lawsuit, Kaul seeks power through unchecked administrative control.

Read more at National Review. 

RYAN J. OWENS is a professor of political science and faculty affiliate in the Law School at the University of Wisconsin-Madison, and the director of the university’s Tommy G. Thompson Center on Public Leadership

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