Service Employees International Union (SEIU), Local 1 v. Robin Vos ( 2020 )


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    2020 WI 67
    SUPREME COURT         OF   WISCONSIN
    CASE NO.:              2019AP614-LV & 2019AP622
    COMPLETE TITLE:        Service Employees International Union (SEIU),
    Local 1, SEIU Healthcare Wisconsin, Milwaukee
    Area Service and Hospitality Workers, AFT-
    Wisconsin, Wisconsin Federation of Nurses and
    Health Professionals, Ramon Argandona, Peter
    Rickman, Amicar Zapata, Kim Kohlhaas, Jeffrey
    Myers, Andrew Felt, Candice Owley, Connie Smith
    and Janet Bewley,
    Plaintiffs-Respondents,
    v.
    Robin Vos, in his official capacity as Wisconsin
    Assembly Speaker, Roger Roth, in his official
    capacity as Wisconsin Senate President, Jim
    Steineke, in his official capacity as Wisconsin
    Assembly Majority Leader and Scott
    Fitzgerald, in his official capacity as
    Wisconsin Senate Majority Leader,
    Defendants-Appellants,
    Josh Kaul, in his official capacity as Attorney
    General of the State of Wisconsin and Tony
    Evers, in his official capacity as Governor of
    the State of Wisconsin,
    Defendants-Respondents.
    REVIEW OF AN ORDER OF THE COURT OF APPEALS
    (2019 – unpublished)
    OPINION FILED:         July 9, 2020
    SUBMITTED ON BRIEFS:
    ORAL ARGUMENT:         March 18, 2020
    SOURCE OF APPEAL:
    COURT:              Circuit
    COUNTY:             Dane
    JUDGE:              Frank D. Remington
    JUSTICES:
    The opinion of the court is being announced in two writings.
    HAGEDORN, J., delivered a majority opinion of the Court
    addressing all issues other than the provisions of 2017 Wis. Act
    369 concerning guidance documents. This is a majority opinion
    of the Court with respect to Part II.E.2.-4., in which all
    Justices joined; and a majority opinion of the Court with
    respect to Parts I, II.A.-D., II.E.1., and III, in which
    ROGGENSACK, C.J., ZIEGLER, REBECCA GRASSL BRADLEY, and KELLY,
    JJ., joined. KELLY, J., delivered a majority opinion of the
    Court with respect to the provisions of 2017 Wis. Act 369
    concerning guidance documents, in which ANN WALSH BRADLEY,
    REBECCA GRASSL BRADLEY, and DALLET, JJ., joined. ROGGENSACK,
    C.J., filed an opinion concurring in part and dissenting in
    part. DALLET, J., filed an opinion concurring in part and
    dissenting in part, in which ANN WALSH BRADLEY, J., joined.
    HAGEDORN, J., filed an opinion concurring in part and dissenting
    in part, in which ZIEGLER, J., joined.
    NOT PARTICIPATING:
    ATTORNEYS:
    For the defendants-appellants, there were briefs filed by
    Misha Tseytlin and Troutman Sanders LLP, Chicago, Illinois, and
    Eric    M.        McLeod,   Lisa    M.    Lawless         and    Husch    Blackwell    LLP,
    Madison. There was an oral argument by Misha Tseytlin.
    For the plaintiffs-respondents, there was a brief filed by
    Nicole G. Berner, Claire Prestel, John M. D’Elia and Service
    Employees         International      Union,       Washington,        D.C.;     Timothy   E.
    Hawks, Barbara Z. Quindel and Hawks Quindel, S.C., Milwaukee;
    Jeremy P. Levinson, Stacie H. Rosenzweig and Halling & Cayo,
    S.C.,        Milwaukee;     David        Strom      and     American      Federation     of
    Teachers,          Washington,     D.C.;      and    Matthew        Wessler    and    Gupta
    Wessler PLLC, Washington, D.C.                    There was an oral argument by
    Matthew Wessler.
    For the defendants-respondents, there were briefs filed by
    Lester       A.    Pines,   Tamara       B.   Packard,          Christa   O.   Westerberg,
    Leslie A. Freehill, Beauregard W. Patterson and Pines Bach LLP,
    Madison; Joshua L. Kaul, attorney general, Thomas C. Bellavia,
    2
    assistant attorney general and Colin T. Roth, assistant attorney
    general.   There was an oral argument by Joshua L. Kaul and
    Lester A. Pines.
    An amicus curiae brief was filed on behalf of Wisconsin Law
    and Liberty, Inc. by Richard M. Esenberg, CJ Szafir, Lucas T.
    Vebber and Anthony LoCoco, Milwaukee.
    An amicus curiae brief was filed on behalf of Wisconsin
    Manufacturers & Commerce by Corydon J. Fish, Madison.
    3
    
    2020 WI 67
    NOTICE
    This opinion is subject to further
    editing and modification.   The final
    version will appear in the bound
    volume of the official reports.
    No.    2019AP614-LV & 2019AP622
    (L.C. No.   2019CV302)
    STATE OF WISCONSIN                    :            IN SUPREME COURT
    Service Employees International Union (SEIU),
    Local 1, SEIU Healthcare Wisconsin, Milwaukee
    Area Service and Hospitality Workers, AFT-
    Wisconsin, Wisconsin Federation of Nurses and
    Health Professionals, Ramon Argandona, Peter
    Rickman, Amicar Zapata, Kim Kohlhaas, Jeffrey
    Myers, Andrew Felt, Candice Owley, Connie Smith
    and Janet Bewley,
    Plaintiffs-Respondents,
    v.
    Robin Vos, in his official capacity as                       FILED
    Wisconsin Assembly Speaker, Roger Roth, in his
    official capacity as Wisconsin Senate                    JUL 9, 2020
    President, Jim Steineke, in his official
    capacity as Wisconsin Assembly Majority Leader             Sheila T. Reiff
    and Scott Fitzgerald, in his official capacity          Clerk of Supreme Court
    as Wisconsin Senate Majority Leader,
    Defendants-Appellants,
    Josh Kaul, in his official capacity as Attorney
    General of the State of Wisconsin and Tony
    Evers, in his official capacity as Governor of
    the State of Wisconsin,
    Defendants-Respondents.
    The opinion of the court is being announced in two writings.
    HAGEDORN, J., delivered a majority opinion of the Court
    addressing all issues other than the provisions of 2017 Wis. Act
    369 concerning guidance documents.    This is a majority opinion
    of the Court with respect to Part II.E.2.-4., in which all
    Justices joined; and a majority opinion of the Court with
    respect to Parts I, II.A.-D., II.E.1., and III, in which
    ROGGENSACK, C.J., ZIEGLER, REBECCA GRASSL BRADLEY, and KELLY,
    JJ., joined.   KELLY, J., delivered a majority opinion of the
    Court with respect to the provisions of 2017 Wis. Act 369
    concerning guidance documents, in which ANN WALSH BRADLEY,
    REBECCA GRASSL BRADLEY, and DALLET, JJ., joined.     ROGGENSACK,
    C.J., filed an opinion concurring in part and dissenting in
    part. DALLET, J., filed an opinion concurring in part and
    dissenting in part, in which ANN WALSH BRADLEY, J., joined.
    HAGEDORN, J., filed an opinion concurring in part and dissenting
    in part, in which ZIEGLER, J., joined.
    APPEAL from an order of the Circuit Court of Dane County,
    Frank D. Remington, Circuit Court Judge.                    Affirmed in part,
    reversed in part, injunction vacated in part, cause remanded.
    ¶1   BRIAN HAGEDORN, J.           Under our constitutional order,
    government derives its power solely from the people.                 Government
    actors, therefore, only have the power the people consent to
    give    them.   The      Wisconsin      Constitution    is    the   authorizing
    charter for government power in Wisconsin.                   And that document
    describes   three——and      only     three——types      of    government   power:
    legislative, executive, and judicial.             See Wis. Const. art. IV,
    § 1;
    id. art. V,
    § 1;
    id. art. VII,
    § 2.                Legislative power is
    the power to make the law, to decide what the law should be.
    Executive   power   is    power    to   execute   or    enforce     the   law   as
    2
    Nos.    2019AP614-LV & 2019AP622
    enacted.      And judicial power is the power to interpret and apply
    the law to disputes between parties.
    ¶2     The constitution then provides that each type of power
    is    "vested"    in     a    corresponding       branch    of     government.          The
    legislative power is vested in two elected bodies——the senate
    and the assembly.
    Id. art. IV,
    § 1.            The executive power is
    vested in the governor.
    Id. art. V,
    § 1.                And the judicial
    power——being      exercised       in    this   very   writing——is          vested      in    a
    "unified court system" headed by the supreme court.
    Id. art. VII,
    §§ 2-3.          With some exceptions, the general rule is that
    this diffusion of power into three separate branches creates a
    concomitant      separation       of     powers     requiring          each    branch       to
    exercise only the power vested in it by the people of Wisconsin.
    ¶3     This case arises from enactment of 2017 Wis. Act 369
    and    2017    Wis.     Act     370.      These     acts        were    passed    by    the
    legislature      and     signed    by    the    governor         following       the    2018
    election, but before the newly elected legislature, governor,
    and   attorney        general   were    sworn     into     office.        In     response,
    several       labor     organizations      and     individual           taxpayers       (the
    Plaintiffs) filed suit against the leaders of both houses of the
    legislature (the Legislative Defendants), the Governor, and the
    Attorney General.            The Plaintiffs broadly claimed that many of
    the enacted provisions violate the separation of powers.                                    In
    particular, the Plaintiffs argued these new laws either overly
    burden the executive branch or took executive power and gave it
    to the legislature.
    3
    Nos.   2019AP614-LV & 2019AP622
    ¶4      The complaint unequivocally presents a facial attack
    on all the laws challenged.                  That is, the Plaintiffs seek to
    strike     down    application          of   the    challenged         laws     in   their
    entirety, rather than as applied to a given party or set of
    circumstances.         Briefing below and to this court confirms this.
    By presenting their challenge this way, the Plaintiffs face a
    tall task.        Under our well-established law, a facial challenge
    succeeds    only       when    every    single     application      of    a    challenged
    provision is unconstitutional.
    ¶5      The procedural history is a bit complicated, but in
    short, the Legislative Defendants moved to dismiss the entire
    complaint, which the circuit court denied in full.                            In the same
    order, the circuit court granted a temporary injunction against
    enforcement       of    some    of     the   provisions,        most     notably,     laws
    requiring legislative approval of settlements by the attorney
    general,     a      provision          allowing      multiple          suspensions      of
    administrative         rules,     and    a   set    of     statutes      defining     and
    regulating administrative agency communications called "guidance
    documents."        We took jurisdiction of this case, and therefore
    review the circuit court's denial of the motion to dismiss and
    its partial grant of a temporary injunction.
    ¶6      The court's opinion in this case is being announced in
    two writings.          Justice Kelly's opinion constitutes the majority
    opinion of the court on all of the guidance document provisions.
    This writing constitutes the majority opinion of the court on
    all other issues raised in this case.
    4
    Nos.    2019AP614-LV & 2019AP622
    ¶7    In light of the procedural posture of this case and
    the briefing before us, our analysis in this opinion rests on
    our review of the circuit court's denial of the Legislative
    Defendants' motion to dismiss.              Our task is to determine whether
    the complaint states a valid legal claim against the challenged
    laws     assuming     the   allegations          in     the        complaint    are   true.
    Accordingly, this is purely a question of law and requires no
    factual development.           See infra, ¶26.
    ¶8    While the Legislative Defendants moved to dismiss the
    entire      complaint,      they    have        not     sufficiently           briefed   or
    developed     arguments        regarding     several          challenged       provisions.
    Where the party seeking dismissal has not developed arguments on
    a legal issue, we will not develop arguments for them.                                   See
    infra, ¶24.         Therefore, we offer no opinion on the merits of
    these undeveloped claims——none of which were enjoined by the
    circuit court——and they may proceed in the ordinary course of
    litigation on remand.
    ¶9    All of the enjoined claims, as well as several other
    related     claims,     were    sufficiently           briefed        and   argued.      We
    conclude that with respect to each of these claims, other than
    those separately addressed in Justice Kelly's opinion for the
    court,      the   Plaintiffs       have    not        met     their     high    burden   to
    demonstrate that the challenged provisions are unconstitutional
    in all of their applications.               Each of these provisions can be
    lawfully enforced as enacted in at least some circumstances.
    Accordingly,      the    motion    to     dismiss       the        facial   challenges   to
    these claims should have been granted.                      This therefore means the
    5
    Nos.    2019AP614-LV & 2019AP622
    temporary     injunction          is    vacated         in      full    except       as   otherwise
    instructed in Justice Kelly's opinion for the court.
    ¶10    Specifically,            the     provisions              regarding       legislative
    involvement in litigation through intervention and settlement
    approval authority in certain cases prosecuted or defended by
    the     attorney         general        are       facially         constitutional.                 The
    legislature        may    have    an     institutional            interest        in      litigation
    implicating        the    public        purse      or      in    cases     arising          from   its
    statutorily        granted       right       to    request        the     attorney        general's
    participation in litigation.                      These institutional interests are
    sufficient to allow at least some constitutional applications of
    these laws, and the facial challenge asking us to declare the
    laws unenforceable under any circumstances necessarily fails.
    ¶11    In     a      similar           vein,        the         provision          permitting
    legislative committee review of any proposed changes to security
    at     the    State       Capitol        has       at        least      some     constitutional
    applications with respect to security of legislative space.                                        It
    follows that a facial challenge to this provision must fail.
    ¶12    Likewise, the provision allowing multiple suspensions
    of administrative rules plainly has constitutional applications
    under Martinez v. DILHR, where we held that one three-month
    suspension is constitutionally permissible.                                    
    165 Wis. 2d 687
    ,
    702,    
    478 N.W.2d 582
             (1992).             No     party      asks    us     to    revisit
    Martinez or its principles.                   We conclude that if one three-month
    suspension         passes        constitutional               muster,       two        three-month
    suspensions        surely        does     as      well.           Therefore,           the    facial
    challenge to this provision fails.
    6
    Nos.    2019AP614-LV & 2019AP622
    ¶13   Finally, the provision partially codifying our holding
    in Tetra Tech is also clearly constitutional in many, if not
    all, applications.        Tetra Tech EC, Inc. v. DOR, 
    2018 WI 75
    , 
    382 Wis. 2d 496
    ,      
    914 N.W.2d 21
    .         The   facial     challenge     to   this
    provision cannot survive.
    ¶14   With this summary in view, our analysis begins with
    how we got here.
    I.    BACKGROUND
    ¶15   In    December    2018,        both   houses     of   the    Wisconsin
    legislature passed and the governor signed into law 2017 Wis.
    Act   369   and   2017    Wis.    Act      370.     The    specific      provisions
    challenged——because there are many——will be discussed in more
    detail below.       For now, we give a high-level overview of the
    somewhat complicated procedural posture.
    ¶16   Two months after Act 369 and Act 370 became law——and
    after the new legislature, governor, and attorney general were
    sworn in——the Plaintiffs brought the complaint underlying this
    appeal in Dane County Circuit Court.1               They sued the Legislative
    1The Plaintiffs are: Service Employees International Union
    (SEIU), Local 1; SEIU Healthcare Wisconsin; Milwaukee Area
    Service    and   Hospital   Workers;   AFT-Wisconsin;   Wisconsin
    Federation of Nurses and Health Professionals; Ramon Argandona;
    Peter Rickman; Amicar Zapata; Kim Kohlhaas; Jeffrey Myers;
    Andrew Felt; Candice Owley; Connie Smith; and Janet Bewley.
    The Honorable        Frank       D.   Remington,      Dane   County   Circuit
    Court, presided.
    7
    Nos.   2019AP614-LV & 2019AP622
    Defendants,2 Attorney General Josh Kaul, and Governor Tony Evers—
    —all       in   their   official    capacities.              The    complaint     sought
    declaratory and injunctive relief from enforcement of numerous
    provisions of these acts.            Concurrent with the filing of their
    complaint, the Plaintiffs also moved for a temporary injunction.3
    ¶17      The Legislative Defendants responded with a motion to
    dismiss the entire complaint, arguing all challenged provisions
    were consistent with the Wisconsin Constitution.
    ¶18      Although   a   defendant       in   his    official      capacity,   the
    Governor supported the Plaintiffs' arguments and took them a
    step       further.     The    Governor    brought         his     own   motion   for   a
    temporary injunction seeking to enjoin additional provisions not
    raised in the Plaintiffs' temporary injunction motion.4                              The
    Governor also filed a cross-claim joining the complaint in full
    The Legislative Defendants, all sued in their official
    2
    capacities, are:      Wisconsin Assembly Speaker Robin Vos;
    Wisconsin Senate President Roger Roth; Wisconsin Assembly
    Majority Leader Jim Steineke; and Wisconsin Senate Majority
    Leader Scott Fitzgerald.
    The Plaintiffs' motion was styled as a request for a
    3
    temporary restraining order; however, the circuit court, by
    agreement of the parties, construed the motion as one for a
    temporary injunction.
    The Governor's motion was similarly titled a motion for a
    4
    temporary restraining order and construed as a motion for a
    temporary injunction.
    8
    Nos.   2019AP614-LV & 2019AP622
    and requesting his own declaratory and injunctive relief with
    respect to the additional provisions he sought to enjoin.5
    ¶19     The Attorney General was also sued in his official
    capacity, but did not render a substantive defense of the laws.
    Rather, the Attorney General largely supported the Plaintiffs,
    and   asked    the    circuit   court    to   strike    down     multiple      laws
    impacting his authority.
    ¶20     On March 25, 2019, the circuit court heard arguments
    on all pending motions, and it provided its decision and order
    the   following      day.    The   circuit    court     denied    in    full   the
    Legislative Defendants' motion to dismiss the complaint.                        It
    also granted the motions for temporary injunction in part and
    denied them      in part.       The laws enjoined concern legislative
    involvement     in   state-related      litigation;     the    ability    of    the
    Joint Committee for Review of Administrative Rules to suspend an
    administrative       rule   multiple    times;   and     various       provisions
    5We observe that the Governor, who was sued in his
    official, not personal, capacity, signed these bills into law.
    We leave for another day whether the governor of Wisconsin may
    sue the legislature over laws that the legislature passed, and
    here, ones the governor himself in his official capacity signed
    into law. We also leave for another day whether the legislature
    may be sued by the governor for passing laws the governor at
    some point thereafter believes are inconsistent with the
    constitution.
    9
    Nos.   2019AP614-LV & 2019AP622
    regarding      a     newly    defined      category     of   agency         communications
    called guidance documents.6
    ¶21       The       Legislative       Defendants      then        sought      appellate
    review of both the denial of the motion to dismiss and the order
    granting    injunctive        relief.7        On   April     19,       2019,      this    court
    assumed     jurisdiction            over     the   appeal         of        the    temporary
    injunction.          And on June 11, 2019, we assumed jurisdiction over
    and granted the Legislative Defendants' interlocutory appeal of
    the denial of the motion to dismiss.                         On the same date, we
    issued an order imposing a stay on the temporary injunction
    issued    by       the    circuit    court     with     respect        to    all    but    one
    provision.8
    6 The circuit court enjoined the following sections:  2017
    Wis. Act 369, § 26 (Wis. Stat. § 165.08(1) (2017-18)); § 30
    (Wis. Stat. § 165.25(6)(a)1.); § 31 (Wis. Stat. § 227.01(3m));
    § 33 (Wis. Stat. § 227.05); § 38 (Wis. Stat. § 227.112); § 64
    (Wis. Stat. § 227.26(2)(im)); § 65 (Wis. Stat. § 227.40(1));
    § 66   (Wis.  Stat.   § 227.40(2)(intro.));   § 67 (Wis.  Stat.
    § 227.40(2)(e)); § 68 (Wis. Stat. § 227.40(3)(ag)); § 69 (Wis.
    Stat. § 227.40(3)(ar)); § 70 (Wis. Stat. § 227.40(3)(b) & (c));
    § 71 (Wis. Stat. § 227.40(4)(a)); and §§ 104-05.
    All subsequent references to the Wisconsin Statutes are to
    the 2017-18 version unless otherwise indicated.
    7 Originally, the Legislative Defendants filed one appeal
    requesting review of both the denial of the motion to dismiss
    and the order granting injunctive relief. However, this appeal
    was split into two separate appeals——No. 2019AP622 is the appeal
    as of right from the temporary injunction while No. 2019AP614-LV
    is the petition for leave to file an interlocutory appeal from
    the circuit court's denial of the motion to dismiss.
    8 We did not stay the circuit court's temporary injunction
    of 2017 Wis. Act 369, § 38 with respect to Wis. Stat.
    § 227.112(7)(a).
    10
    Nos.   2019AP614-LV & 2019AP622
    II.     DISCUSSION
    A.    Scope of Review
    ¶22    Because of the procedural posture of this case, we
    have two categories of claims before us.                        The first category
    comprises claims raised by the Plaintiffs in their complaint and
    challenged by the Legislative Defendants' in their motion to
    dismiss the entire complaint.               Some of these were enjoined by
    the circuit court, some were not.                  But the motion to dismiss,
    which includes all issues raised in the complaint, is before us
    on review.
    ¶23    The second category of claims are new issues raised in
    the Governor's cross-claim and in the Governor's motion for a
    temporary       injunction.        These    are,       with    one   exception,      not
    properly before us on review.               The exception is 2017 Wis. Act
    369, § 33 (Wis. Stat. § 227.05), a guidance document provision
    addressed in Justice Kelly's opinion for the court.
    ¶24    Although the Legislative Defendants seek dismissal of
    the    entire    complaint,      several        provisions      challenged     by    the
    Plaintiffs       either   were     not     argued       at     all   or    were     only
    perfunctorily raised in briefing before us.                     We do not step out
    of    our    neutral   role   to    develop       or    construct     arguments      for
    parties; it is up to them to make their case.                         State v. Pal,
    
    2017 WI 44
    , ¶26, 
    374 Wis. 2d 759
    , 
    893 N.W.2d 848
    .                         If they fail
    to do so, we may decline to entertain those issues.                          See State
    v. Lepsch, 
    2017 WI 27
    , ¶42, 
    374 Wis. 2d 98
    , 
    892 N.W.2d 682
    ("We
    dismiss Lepsch's argument . . . as undeveloped.").                         Because the
    11
    Nos.   2019AP614-LV & 2019AP622
    Legislative Defendants failed to set forth sufficient arguments
    on several challenged provisions, these claims may proceed in
    the ordinary course of litigation on remand.                           We express no
    opinion on the merits of those claims.9
    ¶25    This opinion therefore addresses only the provisions
    properly raised in the complaint and substantively argued in the
    circuit court and before us.               Accordingly, we will address all
    claims      enjoined     by    the    circuit         court    along   with   several
    additional provisions not enjoined but nonetheless argued by the
    parties.
    B.   Standard of Review
    ¶26    A motion to dismiss tests the legal sufficiency of the
    complaint.       Data Key Partners v. Permira Advisers LLC, 
    2014 WI 86
    , ¶19, 
    356 Wis. 2d 665
    , 
    849 N.W.2d 693
    .                         For purposes of
    our review, we treat all allegations in the complaint as true.
    Id., ¶18. "However,
    legal conclusions asserted in a complaint
    are   not    accepted,    and      legal   conclusions         are   insufficient   to
    withstand a motion to dismiss."
    Id. Thus, our
    focus is on the
    factual allegations, not on any additional claims or arguments
    asserted by the parties.             We then determine whether the facts
    9Provisions raised in the complaint that we do not address
    are 2017 Wis. Act 369, § 87 (Wis. Stat. § 238.399(3)(am)); 2017
    Wis. Act 370, § 10 (Wis. Stat. § 20.940), and § 11 (Wis. Stat.
    § 49.175(2)(a)).    In the course of briefing, the parties
    reference many additional and often related provisions.       We
    similarly decline to opine on any additional provisions not
    explicitly addressed in either this or Justice Kelly's opinion
    for the court.
    12
    Nos.   2019AP614-LV & 2019AP622
    alleged in the complaint state a viable cause of action.                                       This
    is a legal question we review de novo, and one requiring no
    further factual development.
    Id., ¶17. ¶27
      Granting injunctive relief is a discretionary decision
    that we review for an erroneous exercise of discretion.                                    Werner
    v.   A.L.    Grootemaat         &     Sons,    Inc.,       
    80 Wis. 2d 513
    ,          519,    
    259 N.W.2d 310
    (1977).          Here, we conclude the circuit court should
    have granted the motion to dismiss with respect to the enjoined
    provisions discussed in this opinion and direct it to do so.                                     By
    necessity,       the     temporary       injunction             based       on    these   to-be-
    dismissed claims must be vacated as well.
    ¶28   This case raises questions requiring interpretation of
    constitutional and statutory provisions.                           These are questions of
    law we review de novo.                League of Women Voters of Wis. v. Evers,
    
    2019 WI 75
    , ¶13, 
    387 Wis. 2d 511
    , 
    929 N.W.2d 209
    .                                      It is the
    text    of   statutes      that        reflects       the        policy      choices      of   the
    legislature, and therefore "statutory interpretation focus[es]
    primarily on the language of the statute."                              State ex rel. Kalal
    v.     Circuit     Court        for     Dane     Cty.,          
    2004 WI 58
    ,     ¶44,     
    271 Wis. 2d 633
    ,       
    681 N.W.2d 110
    .               The    text        of   the    constitution
    reflects     the       policy       choices     of        the     people,        and   therefore
    constitutional interpretation similarly focuses primarily on the
    language of the constitution.                   See League of Women Voters, 
    387 Wis. 2d 511
    , ¶¶16-18.               "It is the enacted law, not the unenacted
    13
    Nos.   2019AP614-LV & 2019AP622
    intent, that is binding on the public."10             State ex rel. Kalal,
    
    271 Wis. 2d 633
    , ¶44.
    ¶29    Our analysis begins in Part C with an overview of the
    separation of powers under the Wisconsin Constitution.               In Part
    D,   we    address   the   standards   governing   facial   and   as-applied
    challenges.     Finally, in Part E, we apply these principles claim
    by claim.
    C.    Separation of Powers Under the Wisconsin Constitution
    ¶30    "If men were angels, no government would be necessary.
    If angels were to govern men, neither external nor internal
    controls on government would be necessary."             The Federalist No.
    51, at 319 (James Madison) (Clinton Rossiter ed. 1961).                 James
    Madison's sober assessment of human nature and government power
    was rooted in the reality that fear of tyranny was not far from
    the men who risked their lives in the service of liberty.                  It
    For
    10     this       reason,  in  statutory  interpretation,  we
    generally do not        resort to extrinsic aids like legislative
    history unless the     statute is ambiguous. State ex rel. Kalal v.
    Circuit Court for      Dane Cty., 
    2004 WI 58
    , ¶51, 
    271 Wis. 2d 633
    ,
    
    681 N.W.2d 110
    .
    Resort to these extrinsic aids is likewise unnecessary
    where the constitutional text is plain.     See League of Women
    Voters of Wis. v. Evers, 
    2019 WI 75
    , ¶18, 
    387 Wis. 2d 511
    , 
    929 N.W.2d 209
    (determining a historical review was unnecessary
    because the meaning of the constitutional text was clear). But
    where necessary, helpful extrinsic aids may include the
    practices at the time the constitution was adopted, debates over
    adoption   of   a   given  provision,   and   early  legislative
    interpretation as evidenced by the first laws passed following
    the adoption.   See State v. City of Oak Creek, 
    2000 WI 9
    , ¶18,
    
    232 Wis. 2d 612
    , 
    605 N.W.2d 526
    .
    14
    Nos.   2019AP614-LV & 2019AP622
    was   these       men       who   drafted    our       country's       Constitution      and
    established       a     system     where     power      is     diffused     to     different
    branches.         We are more than two centuries into the American
    constitutional experiment, but the separation of powers is not
    an anachronism from a bygone era.                       Our founders believed the
    separation of powers was not just important, but the central
    bulwark of our liberty.               See Morrison v. Olson, 
    487 U.S. 654
    ,
    697 (1988) (Scalia, J., dissenting) ("The Framers of the Federal
    Constitution . . . viewed the principle of separation of powers
    as the absolutely central guarantee of a just Government.").
    ¶31    The Wisconsin Constitution, adopted in 1848, was born
    of these same beliefs.               Government power is divided into three
    separate branches, each "vested" with a specific core government
    power.      Gabler v. Crime Victims Rights Bd., 
    2017 WI 67
    , ¶11, 
    376 Wis. 2d 147
    ,          
    897 N.W.2d 384
    .          By    "vesting"        the      respective
    powers,     our       constitution     "clothe[s]"            that     branch     with   the
    corresponding power; each branch is "put in possession of" a
    specific      governmental          power.         Noah        Webster,      An     American
    Dictionary of the English Language (1828).                              "The legislative
    power shall be vested in a senate and assembly"; "The executive
    power shall be vested in a governor"; and "The judicial power of
    this state shall be vested in a unified court system."                                   Wis.
    Const. art. IV, § 1;
    id.
    art. V,
    § 1;
    id. art. VII,
    § 2.                                   To
    exercise this vested power, the legislature is tasked with the
    enactment of laws; the governor is instructed to "take care that
    the laws be faithfully executed"; and courts are empowered to
    15
    Nos.    2019AP614-LV & 2019AP622
    adjudicate civil and criminal disputes pursuant to the law.
    Id. art. IV,
    § 17;
    id. art. V,
    § 4;
    id. art. VII,
    §§ 3, 5, 8, 14.
    ¶32    While the separation of powers is easy to understand
    in theory, it carries with it not-insignificant complications.
    Notably,      the     Wisconsin    Constitution      itself        sometimes       takes
    portions of one kind of power and gives it to another branch.
    For example, the governor is granted the power "to convene the
    legislature      on    extraordinary       occasions"       and     is    required    to
    "communicate to the legislature, at every session, the condition
    of   the     state,    and   recommend    such    matters     to    them     for   their
    consideration as he may deem expedient."
    Id. art. V,
    § 4.             And
    while the legislature generally makes the law, the supreme court
    has authority over the practice of law, which requires us to
    establish      normative     rules   and    guidelines       that,        although   not
    legislation as such, have the same prescriptive effect.
    Id. art. VII,
    § 3(1); see also Wis. Stat. § 751.12 (detailing the
    supreme court's authority to "regulate pleading, practice, and
    procedure in judicial proceedings in all courts"); Rao v. WMA
    Sec., Inc., 
    2008 WI 73
    , ¶35, 
    310 Wis. 2d 623
    , 
    752 N.W.2d 220
    ("A
    rule   adopted        by   this   court    in    accordance        with    Wis.    Stat.
    § 751.12 is numbered as a statute, is printed in the Wisconsin
    Statutes, may be amended by both the court and the legislature,
    has been described by this court as 'a statute promulgated under
    this court's rule-making authority,' and has the force of law."
    (footnotes omitted)).
    ¶33    That said, these are exceptions to the default rule
    that legislative power is to be exercised by the legislative
    16
    Nos.    2019AP614-LV & 2019AP622
    branch, executive power is to be exercised by the executive
    branch, and judicial power is to be exercised by the judicial
    branch.     "The Wisconsin constitution creates three separate co-
    ordinate branches of government, no branch subordinate to the
    other, no branch to arrogate to itself control over the other
    except as is provided by the constitution, and no branch to
    exercise the power committed by the constitution to another."
    State v. Holmes, 
    106 Wis. 2d 31
    , 42, 
    315 N.W.2d 703
    (1982).
    ¶34    Nevertheless, determining "where the functions of one
    branch     end   and    those   of   another   begin"     is   not    always   easy.
    Id. at 42-43.
             Thus, we have described two categories of powers
    within each branch——exclusive or core powers, and shared powers.
    See Gabler, 
    376 Wis. 2d 147
    , ¶30.
    ¶35    A separation-of-powers analysis ordinarily begins by
    determining if the power in question is core or shared.                         Core
    powers are understood to be the powers conferred to a single
    branch by the constitution.              State v. Horn, 
    226 Wis. 2d 637
    ,
    643, 
    594 N.W.2d 772
    (1999).              If a power is core, "no other
    branch may take it up and use it as its own."                     Tetra Tech, 
    382 Wis. 2d 496
    , ¶48 (Kelly, J.).            Shared powers are those that "lie
    at   the    intersections       of   these    exclusive    core      constitutional
    powers."     
    Horn, 226 Wis. 2d at 643
    .            "The branches may exercise
    power within these borderlands but no branch may unduly burden
    or substantially interfere with another branch."
    Id. at 644
    (citing State ex rel. Friedrich v. Circuit Court for Dane Cty.,
    
    192 Wis. 2d 1
    , 14, 
    531 N.W.2d 32
    (1995) (per curiam)).
    17
    Nos.    2019AP614-LV & 2019AP622
    ¶36     This legal framework is our starting point, but it
    must be filtered through the type of challenge before us.                               The
    Plaintiffs brought what is known as a facial challenge to all
    the   statutory      provisions     in    dispute.           This    is     key   to    our
    disposition of the issues before us, and worthy of some extended
    examination.
    D.    Facial and As-Applied Challenges
    ¶37     Challenges to the constitutionality of a statute are
    generally     defined    in   two    manners:          as-applied          and    facial.
    League of Women Voters of Wis. Educ. Network, Inc. v. Walker,
    
    2014 WI 97
    , ¶13, 
    357 Wis. 2d 360
    , 
    851 N.W.2d 302
    .                            As-applied
    challenges address a specific application of the statute against
    the challenging party.
    Id. With that
    focus, the reviewing
    court considers the facts of the particular case in front of it
    to determine whether the challenging party has shown that the
    constitution     was    actually    violated     by     the     way        the    law   was
    applied in that situation.
    Id. ¶38 In
    a facial challenge, however, the challenging party
    claims that the law is unconstitutional on its face——that is, it
    operates unconstitutionally in all applications.
    Id. We have
    repeatedly reaffirmed that to successfully challenge a law on
    its   face,    the   challenging     party     must     show        that    the   statute
    cannot be enforced "under any circumstances."                          Id.; see also
    State v. Wood, 
    2010 WI 17
    , ¶13, 
    323 Wis. 2d 321
    , 
    780 N.W.2d 63
    ("If a challenger succeeds in a facial attack on a law, the law
    18
    Nos.    2019AP614-LV & 2019AP622
    is   void   'from   its   beginning    to   the     end.'"       (quoted   source
    omitted)).11
    ¶39   This is no small wall to scale.              Proving a legislative
    enactment cannot ever be enforced constitutionally "is the most
    difficult      of   constitutional      challenges"         and     an     "uphill
    endeavor."     League of Women Voters, 
    357 Wis. 2d 360
    , ¶15; State
    v. Dennis H., 
    2002 WI 104
    , ¶5, 
    255 Wis. 2d 359
    , 
    647 N.W.2d 851
    .
    ¶40   The United States Supreme Court has described facial
    challenges     as   "disfavored,"     and   the    type     of    constitutional
    attack that raises the risk of judicial overreach.12                Wash. State
    11See also Gabler v. Crime Victims Rights Bd., 
    2017 WI 67
    ,
    ¶29, 
    376 Wis. 2d 147
    , 
    897 N.W.2d 384
    (explaining "the standard
    for   a   facial   challenge"   is  that   the   law   "'cannot   be
    constitutionally    enforced' . . . 'under    any    circumstances'"
    (quoted source omitted)); Soc'y Ins. v. LIRC, 
    2010 WI 68
    , ¶26,
    
    326 Wis. 2d 444
    , 
    786 N.W.2d 385
    ("[A] facial constitutional
    challenge attacks the law itself as drafted by the legislature,
    claiming the law is void from its beginning to the end and that
    it    cannot     be    constitutionally    enforced     under    any
    circumstances . . . ."); State v. Cole, 
    2003 WI 112
    , ¶30, 
    264 Wis. 2d 520
    , 
    665 N.W.2d 328
    ("A 'facial' challenge to the
    constitutionality of a statute means that the 'challenger must
    establish, beyond a reasonable doubt, that there are no possible
    applications or interpretations of the statute which would be
    constitutional.'" (quoted source omitted)).
    12This court has previously acknowledged that requiring
    facial challenges to show a law cannot be enforced "under any
    circumstances" mirrors the standard enunciated by the United
    States Supreme Court in United States v. Salerno, 
    481 U.S. 739
    (1987).   League of Women Voters of Wis. Educ. Network, Inc. v.
    Walker, 
    2014 WI 97
    , ¶15, 
    357 Wis. 2d 360
    , 
    851 N.W.2d 302
    ; see
    also
    id., ¶60 n.1
    (Crooks, J., concurring) (citing Salerno as
    the applicable framework of law for facial challenges).       In
    Salerno, the Court explained that "[a] facial challenge to a
    legislative Act is, of course, the most difficult challenge to
    mount successfully, since the challenger must establish that no
    set of circumstances exists under which the Act would be 
    valid." 481 U.S. at 745
    .
    19
    Nos.   2019AP614-LV & 2019AP622
    Grange    v.    Wash.       State    Republican          Party,    
    552 U.S. 442
    ,     450
    (2008).     This is so in part because claims of facial invalidity
    often rest on speculation about what might occur in the future.
    Id. They raise
         the     serious    risk      of   calling    on   courts   to
    interpret statutes prematurely and decide legal questions before
    they must be decided.
    Id. at 450-51.
                 Striking down a law
    facially "threaten[s] to short circuit the democratic process by
    preventing laws embodying the will of the people from being
    implemented      in     a    manner    consistent         with     the   Constitution."
    Id. at 451.
             Thus, caution in the face of a facial challenge
    shows due respect to the other branches of government——allowing
    the legislature to legislate and the executive to execute——which
    gives them space to carry out their own constitutional duties.
    ¶41      And    beyond        respect        for    other     branches,     facial
    challenges raise the risk of the judiciary overstepping its own
    constitutional authority.               The United States Supreme Court has
    explained the solemnity of exercising the judicial power:
    This Court, as is the case with all federal courts,
    "has no jurisdiction to pronounce any statute, either
    of a State or of the United States, void, because
    irreconcilable with the constitution, except as it is
    called upon to adjudge the legal rights of litigants
    in actual controversies.     In the exercise of that
    jurisdiction, it is bound by two rules, to which it
    has rigidly adhered:     one, never to anticipate a
    question of constitutional law in advance of the
    necessity of deciding it; the other never to formulate
    a rule of constitutional law broader than is required
    by the precise facts to which it is to be applied."
    Kindred to these rules is the rule that one to whom
    application of a statute is constitutional will not be
    heard to attack the statute on the ground that
    impliedly it might also be taken as applying to other
    20
    Nos.    2019AP614-LV & 2019AP622
    persons or other situations in which its application
    might be unconstitutional.
    United       States   v.     Raines,    
    362 U.S. 17
    ,       21   (1960)   (citation
    omitted).
    ¶42     Judicial modesty, then, counsels that "courts should
    not nullify more of a . . . law than necessary."                          Wash. State
    
    Grange, 552 U.S. at 456
    (citation omitted).                          It also ensures
    that        courts    stay     in      their     lane      by       prohibiting    only
    unconstitutional applications of laws.                     If a law can only be
    applied unconstitutionally, it is our duty to say so.                        But if it
    can be applied constitutionally, it would be an overstep on our
    part to strike down a legislative enactment with constitutional
    applications.13
    ¶43     It is with this understanding and appreciation of a
    modest judicial power that this court has continually required a
    party bringing a facial challenge to prove that the statute
    cannot be constitutionally enforced "under any circumstances."
    This has not been a principle selectively applied; it is not
    In her partial dissent, Justice Dallet suggests that
    13
    subjecting broad statutes to piecemeal, as-applied litigation
    invites this court to engage in policymaking. Justice Dallet's
    concurrence/dissent, ¶¶178-179.  Quite the contrary.  Requiring
    a party to prove a law is unconstitutionally applied to the
    facts of a given case is precisely how as-applied challenges
    work.   Our decision here invites no more policymaking than any
    other as-applied challenge that a court entertains.     Justice
    Dallet's alternative proposal to sweep aside more of a law than
    is necessary to quickly settle a matter is not, by any
    definition, a more modest route.
    21
    Nos.    2019AP614-LV & 2019AP622
    optional.14      Parties casting the widest possible net and seeking
    the   broadest        possible   remedy      must    make      the    maximum    possible
    showing.
    ¶44    At oral argument, the Attorney General asserted that
    this standard should not apply to the laws affecting him because
    the facial challenge doctrine is applied only in cases involving
    private litigants.            The Attorney General described the doctrine
    as    a     matter    of   standing,        and   claimed       that       because    every
    controversy      arising      from    the    legislative        approval       provisions
    would       involve     the    same    public       parties,         the    traditionally
    recognized concerns with facial-challenge adjudication are not
    at    issue    here.       Hence,     the    Attorney    General           contends   these
    The United States Supreme Court has recognized the
    14
    validity of facial challenges premised on general claims of
    statutory overbreadth; however, the circumstances in which such
    challenges may be raised are very limited and not applicable
    here. See Sabri v. United States, 
    541 U.S. 600
    , 609–10 (2004).
    This court has taken a similar approach. See State v. Konrath,
    
    218 Wis. 2d 290
    , 305, 
    577 N.W.2d 601
    (1998) ("With the exception
    of a challenge under the First Amendment to the United States
    Constitution, a party does not have standing to raise a facial
    challenge that a statute is overbroad.").
    In the face of our precedent, Justice Dallet dispenses with
    well-established law and instead chooses to adopt and apply the
    overbreadth standard to two legislative approval provisions. As
    an initial matter, Justice Dallet raises this sua sponte; no
    party argued that we should adopt overbreadth in place of our
    standard facial challenge framework.   Moreover, in a case with
    many separation-of-powers questions, Justice Dallet does not
    argue that this new standard should apply across the board. It
    is unclear why.   One is left to surmise that Justice Dallet's
    approach is a tacit, if not explicit, admission that current law
    does not support her conclusion on these issues. We see no need
    to change our law to fit this case.      We will stick with and
    apply the law as it exists.
    22
    Nos.    2019AP614-LV & 2019AP622
    provisions may be facially challenged because every application
    will    implicate        his        office    and    interested         parties       in     the
    legislature.        No such argument was made in briefing.                        And when
    pressed for supporting authority at oral argument, the Attorney
    General cited only to our decision in Gabler, 
    376 Wis. 2d 147
    .
    ¶45   Gabler      plainly       does    not   stand       for   the    propositions
    advanced     by    the   Attorney        General.        In    that     case,    the       Crime
    Victims Rights Board issued a decision that Judge Gabler had
    violated a victim's constitutional right to speedy disposition
    of the proceedings.
    Id., ¶21. Judge
    Gabler challenged the
    constitutionality of certain provisions under Wis. Stat. ch. 950
    as they applied to judges.
    Id., ¶29. We
    agreed with him that
    the provisions could never be constitutionally applied against
    judges.
    Id., ¶60. In
    so doing, we recognized that the label of
    a challenging party's claim "is not what matters"; rather it is
    the "claim and the relief that would follow" that dictate the
    relevant      standard         of     constitutional          review.
    Id., ¶¶28-29 (quoting
    Doe v. Reed, 
    561 U.S. 186
    , 194 (2010)).                             The statutory
    challenge in Gabler included characteristics of both a facial
    and an as-applied claim.
    Id., ¶29. Namely,
    Judge Gabler sought
    to invalidate the challenged provisions insofar as they could
    ever be applied against judges——that is, he brought a broad
    challenge to a specific category of applications.
    Id., ¶29. In
    a challenge of this kind, we explained that the challenging
    party is still required to demonstrate that, as to the specific
    category      of      applications,            the       statute        could     not         be
    constitutionally enforced under any circumstances.
    Id. Judge 23
                                                         Nos.   2019AP614-LV & 2019AP622
    Gabler    had    to     show     that    the   provisions      could      never    be
    constitutionally applied against judges, even if it could be
    constitutionally applied to others.             The statutory provisions in
    Gabler    were    neither        challenged    nor    struck     down     in    their
    entirety.        In    no    way   did   our   decision       change      the   basic
    difference between a facial and an as-applied challenge.
    ¶46     In contrast, under the Attorney General's theory, so
    long as the relief requested does not reach beyond the parties
    before the court, a facial challenge can be subject to a more
    lenient     standard        of   constitutional      review.        The     Attorney
    General's approach would allow a court to order                        far broader
    relief    than        necessary     to    alleviate     any     unconstitutional
    applications of the law simply because litigation involves the
    same two public parties.
    ¶47     The Attorney General has acknowledged the existence of
    constitutional applications of the challenged provisions (more
    on this below), yet still asks that we strike down the laws in
    their entirety.         As we have explained, this is contrary to an
    appropriate exercise of judicial power.                 The facial versus as-
    applied distinction is not merely a question of standing or
    whether the parties are public or private litigants.                      It goes to
    the appropriate reach of the judicial power to say what the law
    24
    Nos.   2019AP614-LV & 2019AP622
    is,     and     to     craft      a    remedy         appropriately       tailored      to     any
    constitutional violation.15
    ¶48       In short, our law is clear and of long standing.                                 A
    facial challenge requires a showing that all applications of the
    law   are       unconstitutional.                It    is    the   burden     of      the    party
    bringing the challenge to prove this.                         And to the extent a party
    challenges the application of a law, it is the burden of that
    party      to   show      that    the       specific        application     or     category     of
    applications is unconstitutional.
    ¶49       Before us, no arguments have been developed by any
    party      setting        forth       challenges        to    specific     applications         or
    categories of applications.                      The parties arguing against the
    constitutionality            of       the    provisions         ask    that      we    prohibit
    enforcement          of   the     laws      in   their       entirety.        Therefore,        we
    analyze each of the challenged provisions as facial challenges.
    E.   Application to Challenged Provisions
    1.      Legislative Involvement in Litigation
    ¶50       Several challenged provisions give the legislature or
    its committees power to participate in litigation involving the
    State.        As a general rule, prior to 2017 Wis. Act 369, Wisconsin
    Furthermore, the default rule in Wisconsin is that
    15
    statutes are severable.   See Wis. Stat. § 990.001(11) ("If any
    provision of the statutes or of a session law is invalid, or the
    application of either to any person or circumstance is invalid,
    such   invalidity   shall   not  affect   other  provisions   or
    applications which can be given effect without the invalid
    provision or application.").
    25
    Nos.    2019AP614-LV & 2019AP622
    law authorized the attorney general to represent the State in
    litigation and to settle cases in the State's best interest.
    Provisions of 2017 Wis. Act 369 substantially changed that.                          See
    § 5 (Wis. Stat. § 13.365); § 26 (Wis. Stat. § 165.08(1)); § 30
    (Wis.        Stat.      § 165.25(6)(a)1.);          and        § 97     (Wis.      Stat.
    § 803.09(2m)).
    ¶51    Previously,        the     legislature      had    limited    power     to
    intervene in litigation.                 Now, Wis. Stat.         § 13.365 and Wis.
    Stat. § 803.09(2m) give three state legislative committees, each
    acting       on   behalf    of       a   particular     legislative        entity——the
    assembly, the senate, and the whole legislature, respectively——
    the power to intervene in an action in state or federal court
    when    a    party     argues    a   state    statute     is    unconstitutional      or
    "preempted        by   federal       law,"    "or   otherwise         challenges    [the
    statute's] construction or validity."16
    16   Wisconsin Stat. § 13.365 provides:
    Pursuant to [Wis. Stat. §] 803.09(2m), when a party to
    an action challenges in state or federal court the
    constitutionality of a statute, facially or as
    applied,   challenges  a   statute  as   violating  or
    preempted by federal law, or otherwise challenges the
    construction or validity of a statute, as part of a
    claim or affirmative defense:
    (1) The committee on assembly organization may
    intervene at any time in the action on behalf of the
    assembly.   The committee on assembly organization may
    obtain legal counsel other than from the department of
    justice, with the cost of representation paid from the
    appropriation under [Wis. Stat. §] 20.765(1)(a), to
    represent the assembly in any action in which the
    assembly intervenes.
    26
    Nos.   2019AP614-LV & 2019AP622
    ¶52   In addition, prior to Act 369, the attorney general
    had the power in many cases to settle litigation impacting the
    State as he thought in the best interest of the State.            In Wis.
    Stat. § 165.08(1) and Wis. Stat. § 165.25(6)(a)1., much of that
    unilateral   power   has   been   removed   and    is   now   subject   to
    legislative approval.
    (2) The committee on senate organization may intervene
    at any time in the action on behalf of the senate.
    The committee on senate organization may obtain legal
    counsel other than from the department of justice,
    with the cost of representation paid from the
    appropriation under [Wis. Stat. §] 20.765(1)(b), to
    represent the senate in any action in which the senate
    intervenes.
    (3) The joint committee on legislative organization
    may intervene at any time in the action on behalf of
    the legislature.   The joint committee on legislative
    organization may obtain legal counsel other than from
    the   department  of   justice,  with   the  cost   of
    representation paid from the appropriation under [Wis.
    Stat. §] 20.765(1)(a) or (b), as determined by the
    cochairpersons, to represent the legislature in any
    action in which the joint committee on legislative
    organization intervenes.
    While Wis. Stat. § 803.09(2m) states:
    When a party to an action challenges in state or
    federal court the constitutionality of a statute,
    facially or as applied, challenges a statute as
    violating or preempted by federal law, or otherwise
    challenges the construction or validity of a statute,
    as part of a claim or affirmative defense, the
    assembly,  the   senate,  and   the   legislature  may
    intervene as set forth under [Wis. Stat. §] 13.365 at
    any time in the action as a matter of right by serving
    a motion upon the parties as provided in [Wis. Stat.
    §] 801.14.
    27
    Nos.   2019AP614-LV & 2019AP622
    ¶53    Wisconsin     Stat.      § 165.08(1)           provides        that   the
    Department of Justice (DOJ), the agency headed by the attorney
    general, cannot settle or discontinue a case prosecuted by the
    attorney     general     unless     either    the     legislative           intervenor
    approves, or if the legislature has not intervened, DOJ receives
    approval from the Joint Committee on Finance (JFC).                     Further, if
    DOJ wishes to concede the validity of a statute, "it must first
    get   permission       from   the     joint     committee        on     legislative
    organization     before    asking    the     joint    committee        on   finance."
    § 165.08(1).17
    ¶54    Wisconsin Stat. § 165.25(6)(a)1. amends the power of
    the attorney general to settle actions seeking injunctive relief
    or involving a proposed consent decree.                      In such cases, the
    attorney general must obtain the approval of any legislative
    17   Wisconsin Stat. § 165.08(1) states:
    Any civil action prosecuted by the department by
    direction of any officer, department, board, or
    commission, or any civil action prosecuted by the
    department on the initiative of the attorney general,
    or at the request of any individual may be compromised
    or discontinued with the approval of an intervenor
    under [Wis. Stat. §] 803.09(2m) or, if there is no
    intervenor, by submission of a proposed plan to the
    joint committee on finance for the approval of the
    committee. The compromise or discontinuance may occur
    only if the joint committee on finance approves the
    proposed plan.   No proposed plan may be submitted to
    the joint committee on finance if the plan concedes
    the unconstitutionality or other invalidity of a
    statute, facially or as applied, or concedes that a
    statute violates or is preempted by federal law,
    without the approval of the joint committee on
    legislative organization.
    28
    Nos.   2019AP614-LV & 2019AP622
    intervenor.     If no legislative entity has intervened, the new
    law establishes a multi-phase approval process with JFC.                DOJ
    must first submit a plan to JFC.          The JFC co-chairs, in turn,
    have 14 working days to notify the attorney general that the
    committee will meet to review the plan.        If the attorney general
    receives    notification   from   the   committee   of   a   meeting,   the
    attorney general is required to obtain permission from JFC in
    order to settle.     Moreover, the attorney general cannot submit a
    plan that concedes "the unconstitutionality or other invalidity
    of a statute, facially or as applied, or concedes that a statute
    violates or is preempted by federal law," without first getting
    approval from the Joint Committee on Legislative Organization.
    § 165.25(6)(a)1.18
    18   Wisconsin Stat. § 165.25(6)(a)1. now provides:
    At the request of the head of any department of state
    government, the attorney general may appear for and
    defend any state department, or any state officer,
    employee, or agent of the department in any civil
    action or other matter brought before a court or an
    administrative agency which is brought against the
    state department, or officer, employee, or agent for
    or on account of any act growing out of or committed
    in the lawful course of an officer's, employee's, or
    agent's duties.      Witness fees or other expenses
    determined by the attorney general to be reasonable
    and necessary to the defense in the action or
    proceeding shall be paid as provided for in [Wis.
    Stat. §] 885.07.   The attorney general may compromise
    and settle the action as the attorney general
    determines to be in the best interest of the state
    except that, if the action is for injunctive relief or
    there is a proposed consent decree, the attorney
    general may not compromise or settle the action
    without the approval of an intervenor under [Wis.
    Stat. §] 803.09(2m) or, if there is no intervenor,
    29
    Nos.    2019AP614-LV & 2019AP622
    ¶55   The Plaintiffs argue (and the Governor and Attorney
    General agree) that this takes a core executive power and gives
    it to the legislature in violation of the separation of powers.19
    Specifically,        they    maintain      that       such      a    requirement
    impermissibly limits the governor's duty to "take care that the
    laws be faithfully executed."             Wis. Const. art. V, § 4.              If
    deemed a shared power, the Plaintiffs and Attorney General argue
    that these provisions substantially burden the executive branch
    in   violation   of   the    separation    of   powers.        The   Legislative
    Defendants offer two main defenses, and we take each in turn.
    ¶56   First,     the    Legislative       Defendants          argue   these
    provisions are constitutional because the attorney general has
    no   inherent    constitutional    powers,      and      the   powers   that   are
    statutorily      granted     are   therefore          entirely       subject    to
    without first submitting a proposed plan to the joint
    committee on finance.     If, within 14 working days
    after the plan is submitted, the cochairpersons of the
    committee notify the attorney general that the
    committee has scheduled a meeting for the purpose of
    reviewing the proposed plan, the attorney general may
    compromise or settle the action only with the approval
    of the committee. The attorney general may not submit
    a proposed plan to the joint committee on finance
    under this subdivision in which the plan concedes the
    unconstitutionality or other invalidity of a statute,
    facially or as applied, or concedes that a statute
    violates or is preempted by federal law, without the
    approval of the joint committee on legislative
    organization.
    "Legislative power, as distinguished from executive
    19
    power, is the authority to make laws, but not to enforce them."
    Koschkee v. Taylor, 
    2019 WI 76
    , ¶11, 
    387 Wis. 2d 552
    , 
    929 N.W.2d 600
    (quoting Schuette v. Van De Hey, 
    205 Wis. 2d 475
    , 480-81,
    
    556 N.W.2d 127
    (Ct. App. 1996)).
    30
    Nos.    2019AP614-LV & 2019AP622
    legislative modification.                  With this, they argue that because
    the attorney general is not the governor (whom the Wisconsin
    Constitution specifically "vests" with the executive power), any
    modifications to the attorney general's power cannot implicate
    the separation of powers.
    ¶57        We disagree.              Our constitution describes only three
    types    of    power——legislative,               executive,         and    judicial.        When
    pressed       to    say     at    oral    argument         what   exactly      the    attorney
    general    is       doing    if    not     executing        the     law,    the    Legislative
    Defendants had no good answer.                         There is none.             The attorney
    general is assuredly a                   member of the executive branch whose
    duties consist in executing the law.
    ¶58        The constitution itself plainly acknowledges officers
    other than the governor who may permissibly deploy executive
    power.         Article       IV,       Section        28   requires        "Members    of    the
    legislature, and all officers, executive and judicial, except
    such inferior officers as may be by law exempted," to take an
    oath before entering upon the duties of their office.                                       Wis.
    Const. art. IV, § 28 (emphasis added).                        The only fair reading of
    this is that there are other executive officers besides the
    governor.
    ¶59        Article VI of the constitution covers administrative
    officers.          This article establishes three statewide officers——
    the secretary of state, the treasurer, and the attorney general.
    Id. art. VI,
        §§ 2,       3.      It   also        establishes       various    county
    officers,          including       coroners,      registers          of     deeds,    district
    attorneys, sheriffs, and chief executive officers.
    Id. art. VI,
                                                     31
    Nos.    2019AP614-LV & 2019AP622
    § 4.     But these administrative officers do not constitute                                     a
    separate       "administrative"            branch      of     government        carrying      out
    something         called    "administrative"           power.          We    have    repeatedly
    recognized that the constitution describes only three types of
    government power and creates only three branches of government.
    Panzer       v.     Doyle,        
    2004 WI 52
    ,       ¶48,     
    271 Wis. 2d 295
    ,       
    680 N.W.2d 666
    ("Our state constitution has created three branches
    of   government,           each    with     distinct        functions         and    powers."),
    overruled on other grounds by Dairyland Greyhound Park, Inc. v.
    Doyle, 
    2006 WI 107
    , 
    295 Wis. 2d 1
    , 
    719 N.W.2d 408
    ; Gabler, 
    376 Wis. 2d 147
    , ¶11 (same); State v. Washington, 
    83 Wis. 2d 808
    ,
    816, 825, 
    266 N.W.2d 597
    (1978) (same).
    ¶60     While the constitution vests executive power in the
    governor and also places primary responsibility on the governor
    to see that the laws are faithfully executed (Wis. Const. art.
    V,     §§ 1,       4),      our     cases      have         made      clear         that    these
    "administrative"           officers       carry     out     executive        functions.         In
    1855, just a few short years after adoption of the Wisconsin
    Constitution,           Justice      Abram    Smith         observed         "that    sheriffs,
    coroners, registers of deeds, and district attorneys . . . are a
    part    of    the       executive        department."          Attorney        Gen.    ex     rel.
    Bashford v. Barstow, 
    4 Wis. 567
    , 795 (1855).                              Just last term we
    held   that       the    superintendent        of      public        instruction       "has   the
    executive          constitutional            function          to       supervise           public
    instruction."            Koschkee v. Taylor, 
    2019 WI 76
    , ¶¶2, 25-29, 
    387 Wis. 2d 552
    ,         
    929 N.W.2d 600
    .           We    have       also     said     that    state
    administrative agencies "are considered part of the executive
    32
    Nos.    2019AP614-LV & 2019AP622
    branch."
    Id., ¶14. DOJ,
    through which the attorney general
    carries out his functions, is such an administrative agency and
    therefore       part       of     the       executive        branch.            See       Wis.     Stat.
    § 15.01(5)       and       Wis.       Stat.        § 15.25    (creating             the     "executive
    branch" agency, the department of justice, "under the direction
    and     supervision         of        the    attorney        general").               And    we     have
    explicitly       made       this       point       with     reference          to     the    attorney
    general himself, calling him "a high constitutional executive
    officer."         State          v.     Woodington,          
    31 Wis. 2d 151
    ,            167,    
    142 N.W.2d 810
    (1966); see also Milo M. Quaife, The Struggle Over
    Ratification 1846-47, at 456 ("The subordinate executive, or as
    they are called, administrative officers, are a secretary of
    state who is ex officio auditor, a treasurer, and an attorney
    general . . . .").
    ¶61    The Legislative Defendants also hang their hat on Oak
    Creek     where       we        held        that     the     attorney          general        has    no
    constitutionally granted powers.                           State v. City of Oak Creek,
    
    2000 WI 9
    ,     ¶¶24,         55,    
    232 Wis. 2d 612
    ,          
    605 N.W.2d 526
    .           The
    powers    the     attorney            general       does     have,        we    explained,          "are
    prescribed only by statutory law," and the attorney general "has
    no common-law powers or duties."
    Id., ¶¶21, 24
    (quoted source
    omitted);       see    also       State       v.    Snyder,       
    172 Wis. 415
    ,          417,    
    179 N.W. 579
    (1920) ("In this state the attorney general has no
    common-law powers or duties.").
    ¶62    This principle is true, but inapplicable to the case
    at    hand.       The      question           in    this     case        is    not     whether      the
    legislature       may      give        or    take    powers       away        from    the     attorney
    33
    Nos.    2019AP614-LV & 2019AP622
    general; it may.              The question is whether the legislature may
    participate         in     carrying     out    the     executive        branch       functions
    previously assigned to the attorney general.                             Or said another
    way,     the        question     is     not     whether          the    legislature          may
    circumscribe           the    attorney       general's       executive         powers,       but
    whether it may assume them, at least in part, for itself.                                 Thus,
    Oak Creek is inapposite to the separation-of-powers argument at
    the heart of this case.
    ¶63     The Legislative Defendants offer a second argument,
    this    one     with     more   traction.           They    argue      that    the    attorney
    general's power to litigate on behalf of the State is not, at
    least     in     all     circumstances,        within        the    exclusive         zone   of
    executive authority.             We agree.          While representing the State in
    litigation is predominately an executive function, it is within
    those borderlands of shared powers, most notably in cases that
    implicate an institutional interest of the legislature.
    ¶64     One kind of institutional interest is reflected in the
    statutory language authorizing the attorney general to represent
    the State or state officials at the request of the legislature.
    Wis.     Stat.       § 165.25(1m).            Early        enactments         following      the
    adoption       of    the     constitution      are    appropriately           given    special
    weight.        Oak Creek, 
    232 Wis. 2d 612
    , ¶18.                    This is because these
    enactments are likely to reflect the original public meaning of
    the     constitutional          text.         See
    id., ¶¶29-31; Koschkee,
         
    387 Wis. 2d 552
    ,         ¶32.       In    that    vein,        the   attorney       general      was
    granted the power, even the duty, to represent the legislature
    34
    Nos.   2019AP614-LV & 2019AP622
    or to represent the State at the request of the legislature from
    our state's earliest days.
    ¶65     When the Wisconsin Constitution created the office of
    attorney    general,   it    specified       that    his     duties   "shall    be
    prescribed by law."         Oak Creek, 
    232 Wis. 2d 612
    , ¶15 (quoting
    Wis. Const. art. IV, § 3 (1846) (proposed)); Wis. Const. art.
    VI, § 3.     So the first legislature of our new state went about
    prescribing those duties by statute.            In 1848, the same year the
    constitution     was   adopted,      the     legislature       enacted     a   law
    requiring the attorney general to "appear for the state in any
    court or tribunal in any other causes criminal or civil in which
    the state may be a party or be interested," and this was to
    occur "when required by the governor or either branch of the
    legislature."    An Act concerning the Attorney General, Wis. Laws
    1848 (emphasis added).            This language was modified in 1849:
    "[W]hen    requested   by   the    governor    or     either     branch   of   the
    legislature," the attorney general was required to "appear for
    the people of this state, and prosecute or defend in any other
    court, or before any officer, in any cause or matter, civil or
    criminal, in which the people of this state may be a party or
    interested."    Wis. Stat. ch. 9, § 36 (1849) (emphasis added).
    ¶66     This language remains substantially the same today.
    See Wis. Stat. § 165.25(1m).20             Therefore, under the law since
    20    Wisconsin Stat. § 165.25(1m) provides:
    The department of justice shall:
    . . . .
    35
    Nos.   2019AP614-LV & 2019AP622
    our   state's    founding,    the    attorney    general     may   defend    a
    legislative official, employee, or body.               And either house of
    the legislature can request the attorney general to "prosecute
    or defend in any court or before any officer, any cause or
    matter, civil or criminal, in which the state or the people of
    this state may be interested."
    Id. ¶67 These
        early         prescriptions,       adopted       nearly
    contemporaneously with the adoption of our state constitution,
    reflect an understanding that the attorney general's role is
    not, at least in all cases, a core executive function.                      The
    legislature's institutional interest as a represented party, and
    as one that can authorize the attorney general to prosecute
    cases, puts at least some of these cases within the zone of
    shared powers.
    (1m) REPRESENT STATE IN OTHER MATTERS.    If requested
    by the governor or either house of the legislature,
    appear for and represent the state, any state
    department, agency, official, employee or agent,
    whether required to appear as a party or witness in
    any civil or criminal matter, and prosecute or defend
    in any court or before any officer, any cause or
    matter, civil or criminal, in which the state or the
    people of this state may be interested.      The joint
    committee on legislative organization may intervene as
    permitted under [Wis. Stat. §] 803.09(2m) at any time.
    The public service commission may request under [Wis.
    Stat.   §] 196.497(7)   that   the  attorney    general
    intervene in federal proceedings. All expenses of the
    proceedings shall be paid from the appropriation under
    [Wis. Stat. §] 20.455(1)(d).
    (Emphasis added.)
    36
    Nos.   2019AP614-LV & 2019AP622
    ¶68    Another    on-point      institutional            interest      of     the
    legislature is spelled out in the constitution.                       Article VIII,
    Section 2 states in relevant part, "No money shall be paid out
    of the treasury except in pursuance of an appropriation by law."
    Wis. Const. art. VIII, § 2.           The legislature, of course, is the
    branch granted the power to enact laws.
    Id. art. IV,
    § 17.
    ¶69    The    takeaway    is   that      the    constitution         gives    the
    legislature the general power to spend the state's money by
    enacting laws.          Therefore, where litigation involves requests
    for the state to pay money to another party, the legislature, in
    at    least   some    cases,    has   an    institutional         interest     in    the
    expenditure of state funds sufficient to justify the authority
    to approve certain settlements.                 The Attorney General himself
    conceded during oral argument that Wis. Stat. § 165.25(6)(a)1.
    has constitutional applications where the power of the purse is
    implicated.
    ¶70    Other state legislatures appear to have this power as
    well under various circumstances.                 See Ariz. Rev. Stat. Ann.
    § 41-621(N) (2019) (requiring approval of some settlements by
    joint legislative budget committee after reaching certain dollar
    threshold); Conn. Gen. Stat. Ann. § 3-125a(a) (2019) (requiring
    approval of settlements exceeding certain dollar threshold by
    the    legislature);      Neb.     Rev.     Stat.      § 81-8,239.05(4)         (2018)
    (requiring      legislative       approval      in     order     to   pay     punitive
    damages); Okla. Stat. Ann. tit. 51 § 200(A)(1) (2019) (requiring
    legislative     approval    for    settlement         or    consent   decrees       above
    certain dollar threshold); Utah Code Ann. § 63G-10-202 (2018)
    37
    Nos.   2019AP614-LV & 2019AP622
    (same).        Although       the       practice     of     other      states        is    not
    determinative of the constitutional questions before us, this
    generally     reflects        a     shared    understanding            that    legitimate
    institutional, even constitutional, legislative interests may be
    implicated      when     the       attorney       general        purports       to        enter
    settlement agreements affecting state appropriations.
    ¶71    These institutional interests of the legislature are
    sufficient     to    defeat       the   facial     challenge      to    the    provisions
    authorizing legislative intervention in certain cases, and those
    requiring legislative consent to defend and prosecute certain
    cases.      Namely, where a legislative official, employee, or body
    is represented by the attorney general, the legislature has, in
    at least some cases, an institutional interest in the outcome of
    that litigation.         Similarly, where a legislative body is the
    principal authorizing the attorney general's representation in
    the first place, the legislature has an institutional interest
    in the outcome of that litigation in at least some cases.                                 This
    is   true    where     the    attorney       general's       representation           is    in
    defense of the legislative official, employee, or body, or where
    a legislative body is the principal authorizing the prosecution
    of a case.     And in cases where spending state money is at issue,
    the legislature has a constitutional institutional interest in
    at   least     some     cases       sufficient       to     allow      it     to     require
    legislative agreement with certain litigation outcomes, or even
    to allow it to intervene.
    ¶72    Because    this       is   a   facial    challenge,        and    there       are
    constitutional applications of these laws, that challenge cannot
    38
    Nos.    2019AP614-LV & 2019AP622
    succeed.          In   at    least        some     cases,    the     legislature       may
    permissibly give itself the power to consent to an agreement
    where       the   action    involves       injunctive       relief    or   a    proposed
    consent       decree     (Wis.     Stat.         § 165.25(6)(a)1.),        or   in     the
    compromise or discontinuance of a matter being prosecuted (Wis.
    Stat.       § 165.08).        In     at      least    some      cases,     we   see     no
    constitutional         violation        in       allowing      the   legislature        to
    intervene in litigation concerning the validity of a statute, at
    least where its institutional interests are implicated.21                              See
    Wis.    Stat.     § 13.365;      Wis.     Stat.      § 803.09(2m).         As   we    have
    explained, because the Plaintiffs have not met their burden to
    prove these provisions may not be constitutionally applied under
    any circumstances, the motion to dismiss the Plaintiffs' facial
    challenge should have been granted.22
    The legislature, or its committees or members, have
    21
    litigated cases in Wisconsin impacting potential institutional
    interests throughout the history of the state.    See Risser v.
    Klauser, 
    207 Wis. 2d 176
    , 180, 
    558 N.W.2d 108
    (1997) (original
    action brought by several legislators against the governor);
    Citizens Util. Bd. v. Klauser, 
    194 Wis. 2d 484
    , 487-88, 
    534 N.W.2d 608
    (1995) (original action brought by citizens utility
    board and several legislators against the governor and the
    secretary of the Department of Administration); State ex rel.
    Wis. Senate v. Thompson, 
    144 Wis. 2d 429
    , 433, 
    424 N.W.2d 385
    (1988) (original action brought by, among other petitioners, the
    senate and assembly against the governor).
    As explained above, the attorney general's litigation
    22
    authority is not, in at least some cases, an exclusive executive
    power.    These types of cases fall under a shared powers
    analysis.   Where the legislature has appropriate institutional
    interests, legislative exercise of this shared power in at least
    some cases does not unduly burden or substantially interfere
    with the attorney general's executive authority.      Hence, the
    facial challenge gets nowhere under an "unduly burdensome"
    shared powers analysis.
    39
    Nos.   2019AP614-LV & 2019AP622
    ¶73     We stress that this decision is limited.                  We express
    no opinion on whether individual applications or categories of
    applications may violate the separation of powers, or whether
    the   legislature      may    have    other   valid    institutional      interests
    supporting application of these laws.                 But the facial challenge
    seeking     to      strike    down    Wis.    Stat.     § 13.365;      Wis.        Stat.
    § 165.08(1);        Wis.     Stat.    § 165.25(6)(a)1.;         and    Wis.        Stat.
    § 803.09(2m) in their entirety——the only claim developed before
    us——does not succeed.              Given this, the order enjoining these
    provisions is vacated as well.
    2.     Capitol Security
    ¶74     The Plaintiffs also challenge the constitutionality of
    2017 Wis. Act 369, § 16 (Wis. Stat. § 16.84(2m)), which grants
    the   Joint      Committee    of     Legislative      Organization     (JCLO)        the
    authority      to    review    and     approve     changes     proposed       by     the
    Department of Administration (DOA) to security at the Capitol.23
    This provision, Wis. Stat. § 16.84(2m), which was not
    23
    enjoined by the circuit court, states as follows:
    Send notice to the joint committee on legislative
    organization of any proposed changes to security at
    the capitol, including the posting of a firearm
    restriction under [Wis. Stat. §] 943.13 (1m)(c)2. or
    4.   If, within 14 working days after the date of the
    notice, the cochairpersons of the joint committee on
    legislative organization do not notify the department
    that the committee has scheduled a meeting to review
    the   department's   proposal,    the   department may
    implement the changes as proposed in the notice. If,
    within 14 working days after the date of the
    department's   notice,   the   cochairpersons   of the
    committee notify the department that the committee has
    40
    Nos.    2019AP614-LV & 2019AP622
    This new provision requires DOA to notify JCLO of any proposed
    security changes.            § 16.84(2m).          If JCLO does not notify DOA
    within 14 days that a meeting has been scheduled to discuss the
    proposed     changes,        DOA    may     implement        those       changes.
    Id. However, if
    JCLO schedules a meeting to discuss the proposal,
    DOA may proceed with the proposed changes only with the approval
    of JCLO.
    Id. The statute
    also provides an exception if there
    is risk of imminent danger.
    Id. ¶75 The
       Legislative       Defendants         contend        this    section    is
    squarely permissible within the framework of J.F. Ahern Co. v.
    Wisconsin     State        Building       Commission,        
    114 Wis. 2d 69
    ,        
    336 N.W.2d 679
       (Ct.        App.     1983),    and       Martinez,        
    165 Wis. 2d 687
    .
    Specifically,       the     Legislative         Defendants       maintain      this   is    "a
    cooperative venture" with the "proper standards or safeguards"
    to   avoid     a     separation-of-powers               violation.             
    Ahern, 114 Wis. 2d at 108
    ;        
    Martinez, 165 Wis. 2d at 701
        (quoted     source
    omitted).          The    Plaintiffs      characterize           this    section      as    an
    impermissible legislative veto                  that    violates bicameralism and
    presentment as well as the constitution's quorum requirement.
    See Wis. Const. art. IV, § 7;
    id. art. V,
    § 10.
    scheduled a meeting to review the department's
    proposal, the department may implement the proposed
    changes only upon approval of the committee. If there
    is a risk of imminent danger, the department may take
    any action related to security at the capitol that is
    necessary to prevent or mitigate the danger and the
    cochairpersons may review the action later if the
    cochairpersons determine review is necessary.
    41
    Nos.   2019AP614-LV & 2019AP622
    ¶76    Ahern      correctly         noted   that     the     construction        and
    maintenance of public buildings is an executive 
    function. 114 Wis. 2d at 106
    .       In    fact,    the    legislature      created      DOA    and
    granted it broad duties to construct and repair state buildings,
    among other tasks.          Wis. Stat. § 15.10; Wis. Stat. § 16.85.                    See
    generally Wis. Stat. ch. 16.                 However, before the enactment of
    Wis. Stat. § 16.84(2m), the legislature, by statute, created and
    implemented limitations on DOA's authority.                       For example, Wis.
    Stat. § 16.843 denotes where and how vehicles may park around
    the Capitol.         Likewise, even before § 16.84(2m) was enacted,
    DOA's authority to use state buildings for public events did not
    include     the    areas     of    the    Capitol     reserved     for    use    by    the
    legislature.       See Wis. Admin. Code § DOA 2.04(1) (July 2014).
    ¶77    We conclude that control of at least legislative space
    in the Capitol is a shared power between the legislature and
    executive        branches.          It     logically      follows       that    if     the
    legislature can control the use of legislative space,                                as it
    already does in many ways, it can also control the security
    measures put in place for use of that space.                       Because there are
    at   the    very    least    some    constitutional          applications       of    this
    provision, the facial challenge to Wis. Stat. § 16.84(2m) cannot
    succeed.
    3.    Multiple Suspensions of Administrative Rules
    ¶78    The Plaintiffs also challenge 2017 Act 369, § 64 (Wis.
    Stat.   § 227.26(2)(im)),          which     allows    the      Joint   Committee      for
    42
    Nos.   2019AP614-LV & 2019AP622
    Review of Administrative Rules (JCRAR) to suspend a rule more
    than once.24
    ¶79       Wisconsin agencies are required to promulgate rules
    for "each statement of general policy and each interpretation of
    a statute which it specifically adopts to govern its enforcement
    or administration of that statute."                          Wis. Stat. § 227.10(1).
    When promulgated as required by statute, rules have "the force
    of   law."            Wis.   Stat.    § 227.01(13).           Current    statutory      law
    authorizes JCRAR to review rules prior to promulgation, and to
    suspend rules following promulgation.                     See Wis. Stat. § 227.19;
    Wis.    Stat.          § 227.26.        The     legislature      can    establish       the
    procedures by which an agency promulgates rules, and can even
    take    away          rulemaking     authority       altogether.        Koschkee,       
    387 Wis. 2d 552
    , ¶20.              Additionally, the legislature may limit or
    retract      its       delegation     of    rulemaking    authority,      review     rules
    prior to implementation, and determine the methods agencies must
    use to promulgate rules.
    Id. ¶80 In
          Martinez,           this      court        addressed          the
    constitutionality of this temporary rule suspension 
    power. 165 Wis. 2d at 691
    .              We upheld the ability of JCRAR to temporarily
    suspend      a     rule      for    three    months,     reasoning      that    "[i]t   is
    appropriate            for    the     legislature       to     delegate        rule-making
    authority to an agency while retaining the right to review any
    This new paragraph states:
    24                           "Notwithstanding pars. (i)
    and (j), the committee may act to suspend a rule as provided
    under   this   subsection  multiple   times."      Wis.   Stat.
    § 227.26(2)(im).
    43
    Nos.   2019AP614-LV & 2019AP622
    rules promulgated under the delegated power."
    Id. at 698.
             In
    so   doing,       we    also    stressed    the    importance         of       the    temporary
    nature     of     the    suspension.
    Id. at 699-700.
              To     permanently
    repeal a suspended rule, the legislature must pass a bill in
    both houses and have it signed by the governor.
    Id. If no
    repeal      occurs,       the    rule    remains       in     effect       and       cannot   be
    suspended again.
    Id. at 700.
         This structure, we concluded, did
    not violate the separation of powers.
    Id. at 700-01.
    ¶81       Under the new legislative changes, the legislature may
    impose      the        temporary    three-month         suspension             addressed      in
    Martinez multiple times.                The parties do not ask us to revisit
    Martinez or any of its conclusions.                    Under Martinez, an endless
    suspension of rules could not stand; there exists at least some
    required end point after which bicameral passage and presentment
    to   the    governor       must    occur.
    Id. at 700.
           But     also     under
    Martinez,         a     single     temporary        three-month            suspension         is
    permissible.
    ¶82       Accepting these boundary markers, if one three-month
    suspension        is     constitutionally         permissible,           two      three-month
    suspensions are as well.                Under such a scenario, the six-month
    (rather     than        three-month)     delay     would      still       be     followed     by
    acceptance of the rule or repeal through bicameral passage and
    presentment.            This    fits    comfortably         within       the     unchallenged
    reasoning of Martinez——a modest suspension that is temporary in
    nature.
    ¶83       Again, this case comes to us as a facial challenge.
    To   succeed,          every    application       of    this       law     must       be   found
    44
    Nos.       2019AP614-LV & 2019AP622
    unconstitutional.             Because      this    provision          has   constitutional
    applications, the facial challenge must necessarily fail.                                   To
    strike down all applications of this law, or to draw a line in
    the future under which an additional suspension is too long is
    exactly the sort of speculation that counsels caution and a
    narrow    application         of    Martinez      in    the     context       of   a    facial
    challenge.         The facial challenge to Wis. Stat. § 227.26(2)(im)
    must    be    dismissed       on    remand,      and    the     order       enjoining    this
    provision is thereby vacated as well.
    4.     Agency Deference Provision
    ¶84    The Plaintiffs also challenge the constitutionality of
    2017     Wis.      Act   369,      § 35    (Wis.       Stat.     § 227.10(2g)),          which
    provides:       "No agency may seek deference in any proceeding based
    on the agency's interpretation of any law."                                 This provision
    partially codifies our holding in Tetra Tech where we ended "our
    practice of deferring to administrative agencies' conclusions of
    law."        
    382 Wis. 2d 496
    ,        ¶108.       Given       our    own    decision     that
    courts should not defer to the legal conclusions of an agency, a
    statute instructing agencies not to ask for such deference is
    facially constitutional.
    III.    CONCLUSION
    ¶85    This writing constitutes the majority opinion of the
    court on all issues raised in this case other than the guidance
    document      provisions,          which   are    addressed          in   Justice      Kelly's
    45
    Nos.   2019AP614-LV & 2019AP622
    opinion for the court.             With respect to the issues addressed in
    this opinion, we conclude as follows.
    ¶86       For all provisions where arguments were sufficiently
    developed, the Legislative Defendants have successfully shown
    that the motion to dismiss the facial challenge to these laws
    should have been granted.                On remand, we direct the circuit
    court      to   grant   the     motion   to    dismiss   with   respect    to   these
    provisions.25         We also vacate the temporary injunction in full
    for all provisions addressed in this opinion.26                   We stress that
    we   pass       no   judgment    on   the     constitutionality    of     individual
    applications or categories of applications of these laws.                         The
    judicial power is at once immense, yet modest.                    While it is our
    solemn obligation to say what the law is, that power extends to
    deciding only the cases and claims actually presented.                     And that
    is what we do today.27
    Specifically, we reverse the circuit court's order
    25
    denying the motion to dismiss with respect to:     2017 Wis. Act
    369, § 5 (Wis. Stat. § 13.365); § 16 (Wis. Stat. § 16.84(2m));
    § 26    (Wis.    Stat.    § 165.08(1));    § 30    (Wis.    Stat.
    § 165.25(6)(a)1.); § 35 (Wis. Stat. § 227.10(2g)); § 64 (Wis.
    Stat. § 227.26(2)(im)); and § 97 (Wis. Stat. § 803.09(2m)).
    The circuit court's temporary injunction is vacated with
    26
    respect to the following provisions:   2017 Wis. Act 369, § 26
    (Wis. Stat. § 165.08(1)); § 30 (Wis. Stat. § 165.25(6)(a)1.);
    § 64 (Wis. Stat. § 227.26(2)(im)).
    Following oral argument, the Attorney General moved to
    27
    modify the stay of the temporary injunction that we imposed on
    June 11, 2019. As we remand this case for the circuit court to
    issue an order vacating its temporary injunction order in part,
    we deny the Attorney General's motion.
    46
    Nos.   2019AP614-LV & 2019AP622
    By the Court.—The judgment of the circuit court is affirmed
    in   part   and    reversed     in   part,    the    temporary      injunction     is
    vacated     in    part,   and    the   cause        is   remanded       for   further
    proceedings      consistent     with   this   opinion       and   the    opinion   of
    Justice Daniel Kelly.
    47
    Nos.    2019AP614-LV & 2019AP622.dk
    ¶87   DANIEL KELLY, J.           The great Justice Joseph Story once
    said "the three great powers of government . . . should for ever
    be kept separate and distinct."                 2 Joseph Story, Commentaries on
    the Constitution of the United States § 519, at 2-3 (Boston,
    Hilliard, Gray, & Co. 1833).                We agree.         As a consequence, we
    conclude     that    when     the    legislature       prohibited       the    executive
    branch from communicating with the public through the issuance
    of     guidance     documents       without     first       going   through      a     pre-
    clearance process and including legislatively-mandated content,
    it invaded the executive branch's exclusive province to "take
    care that the laws be faithfully executed."                     Wis. Const. art. V,
    § 4.
    ¶88   This opinion is the opinion of the court with respect
    to 2017 Wis. Act 369, §§ 31, 33, 38, 65-71, and 104-105, all of
    which    address      (at    least    in    part)      the    subject     of    guidance
    documents.        Here, we explain why § 33 (to the extent it applies
    to guidance documents) and § 38 unconstitutionally intrude on
    power     the     constitution       vested     in     the    executive       branch    of
    government.         We also describe why § 31 (which defines what a
    guidance     document       is),    §§ 65-71     (to    the    extent    they    provide
    judicial     review    of    guidance      documents),        and   §§ 104-05        (which
    describe the applicability and effective date of § 33) are not
    facially unconstitutional.
    1
    Nos.   2019AP614-LV & 2019AP622.dk
    I.   BACKGROUND1
    ¶89    "Guidance   documents"        are     not       conceptually    new   to
    administrative    agencies,        although       they        had    no    statutory
    definition until the Act created Wis. Stat. § 227.01(3m) (2017-
    18)2 to read as follows:
    (a) "Guidance document" means, except as provided in
    par.   (b),  any   formal  or  official   document  or
    communication issued by an agency, including a manual,
    handbook, directive, or informational bulletin, that
    does any of the following:
    1. Explains the agency's implementation of a statute
    or rule enforced or administered by the agency,
    including the current or proposed operating procedure
    of the agency.
    2. Provides guidance or advice with respect to how the
    agency is likely to apply a statute or rule enforced
    or administered by the agency, if that guidance or
    advice is likely to apply to a class of persons
    similarly affected.
    2017 Wis. Act. 369, § 31 (Wis. Stat. § 227.01(3m)).
    ¶90    The Act regulates guidance documents in several ways,
    the following two of which implicate the boundaries between the
    executive and legislative branches.                The first is § 33, which
    requires    administrative     agencies         (with       some    exceptions)   to
    identify    existing    law   that    supports          a    guidance     document's
    contents:
    1 The part of the court's opinion authored by Justice Brian
    Hagedorn provides the broad background strokes necessary to
    consider SEIU's claims. In this part of the court's opinion, we
    provide some additional context for our treatment of the
    "guidance document" provisions of 2017 Wis. Act 369.
    2 All subsequent references to the Wisconsin Statutes are to
    the 2017-18 version unless otherwise indicated.
    2
    Nos.     2019AP614-LV & 2019AP622.dk
    Agency publications. An agency, other than the
    Board of Regents of the University of Wisconsin
    System, the Technical College System Board, or the
    department of employee trust funds, shall identify the
    applicable provision of federal law or the applicable
    state statutory or administrative code provision that
    supports any statement or interpretation of law that
    the agency makes in any publication, whether in print
    or on the agency's Internet site, including guidance
    documents, forms, pamphlets, or other informational
    materials, regarding the laws the agency administers.
    2017 Wis. Act. 369, § 33 (Wis. Stat. § 227.05).              The second is
    § 38,   which   describes   the   procedure   an   administrative     agency
    must follow when creating a guidance document.
    (1)(a) Before adopting a guidance document, an agency
    shall submit to the legislative reference bureau the
    proposed guidance document with a notice of a public
    comment period on the proposed guidance document under
    par. (b), in a format approved by the legislative
    reference bureau, for publication in the register.
    The notice shall specify the place where comments
    should be submitted and the deadline for submitting
    those comments.
    (b) The agency shall provide for a period for public
    comment on a proposed guidance document submitted
    under par. (a), during which any person may submit
    written comments to the agency with respect to the
    proposed guidance document.     Except as provided in
    par. (c), the period for public comment shall end no
    sooner than the 21st day after the date on which the
    proposed guidance document is published in the
    register under s. 35.93(2)(b)3.im. The agency may not
    adopt the proposed guidance document until the comment
    period has concluded and the agency has complied with
    par. (d).
    (c) An agency may hold a public comment period shorter
    than 21 days with the approval of the governor.
    (d) An agency shall retain all written comments
    submitted during the public comment period under par.
    (b) and shall consider those comments in determining
    whether to adopt the guidance document as originally
    proposed, modify the proposed guidance document, or
    take any other action.
    3
    Nos.   2019AP614-LV & 2019AP622.dk
    (2) An agency shall post each guidance document that
    the agency has adopted on the agency's Internet site
    and shall permit continuing public comment on the
    guidance document.  The agency shall ensure that each
    guidance document that the agency has adopted remains
    on the agency's Internet site as provided in this
    subsection until the guidance document is no longer in
    effect, is no longer valid, or is superseded or until
    the agency otherwise rescinds its adoption of the
    guidance document.
    (3) A guidance document does not have the force of law
    and does not provide the authority for implementing or
    enforcing a standard, requirement, or threshold,
    including as a term or condition of any license.    An
    agency that proposes to rely on a guidance document to
    the detriment of a person in any proceeding shall
    afford the person an adequate opportunity to contest
    the legality or wisdom of a position taken in the
    guidance document.   An agency may not use a guidance
    document to foreclose consideration of any issue
    raised in the guidance document.
    (4) If an agency proposes to act in any proceeding at
    variance with a position expressed in a guidance
    document, it shall provide a reasonable explanation
    for the variance.     If an affected person in any
    proceeding may have relied reasonably on the agency's
    position, the explanation must include a reasonable
    justification for the agency's conclusion that the
    need for the variance outweighs the affected person's
    reliance interest.
    (5) Persons that qualify under s. 227.12 to petition
    an agency to promulgate a rule may, as provided in s.
    227.12, petition an agency to promulgate a rule in
    place of a guidance document.
    (6) Any guidance document shall be signed by the
    secretary or head of the agency below the following
    certification:       "I have reviewed this guidance
    document or proposed guidance document and I certify
    that it complies with sections 227.10 and 227.11 of
    the Wisconsin Statutes.      I further certify that the
    guidance   document    or   proposed   guidance document
    contains no standard, requirement, or threshold that
    is not explicitly required or explicitly permitted by
    a   statute   or   a   rule   that   has   been lawfully
    promulgated.     I further certify that the guidance
    4
    Nos.   2019AP614-LV & 2019AP622.dk
    document or proposed guidance document contains no
    standard, requirement, or threshold that is more
    restrictive than a standard, requirement, or threshold
    contained in the Wisconsin Statutes."
    (7)(a) This section does not apply to guidance
    documents adopted before the first day of the 7th
    month beginning after the effective date of this
    paragraph . . . [LRB inserts date], but on that date
    any guidance document that has not been adopted in
    accordance with sub. (1) or that does not contain the
    certification required under sub. (6) shall be
    considered rescinded.
    (b) This section does not apply to guidance documents
    or proposed guidance documents of the Board of Regents
    of the University of Wisconsin System, the Technical
    College System Board, or the department of employee
    trust funds.
    (8) The legislative council staff shall provide
    agencies  with  assistance  in  determining whether
    documents and communications are guidance documents
    that are subject to the requirements under this
    section.
    2017 Wis. Act. 369, § 38 (Wis. Stat. § 227.112).
    ¶91    SEIU alleges § 38 violates the separation of powers,
    and Governor Tony Evers alleges that, to the extent it addresses
    guidance   documents,   § 33    does       the    same.      For   the   following
    reasons, we agree.
    II.    STANDARD OF REVIEW
    ¶92    We are reviewing the circuit court's denial of the
    Legislative   Defendants'3      motion       to     dismiss     the   plaintiffs'
    complaint, as well as the temporary injunction the circuit court
    3  The "Legislative Defendants," who were sued in their
    official capacity, are Wisconsin Assembly Speaker Robin Vos,
    Wisconsin Senate President Roger Roth, Wisconsin Assembly
    Majority Leader Jim Steineke, and Wisconsin Senate Majority
    Leader Scott Fitzgerald.
    5
    Nos.    2019AP614-LV & 2019AP622.dk
    granted with respect to §§ 31, 33, 38, 65-71, and 104-05.                                       The
    motion to dismiss asserted that the plaintiffs' complaint failed
    to state a claim upon which relief could be granted.                                  "Whether a
    complaint states a claim upon which relief can be granted is a
    question      of     law    for     our       independent          review[.]"          Data     Key
    Partners       v.     Permira       Advisers          LLC,        
    2014 WI 86
    ,       ¶17,    
    356 Wis. 2d 665
    , 
    849 N.W.2d 693
    .                    The motion puts at issue whether
    the    guidance       document       provisions            of    2017    Wis.    Act    369    are
    facially           unconstitutional.                   A         statute         is     facially
    unconstitutional only when it "cannot be enforced 'under any
    circumstances.'"            Mayo v. Wisconsin Injured Patients & Families
    Comp.    Fund,       
    2018 WI 78
    ,    ¶24,       
    383 Wis. 2d 1
    ,       
    914 N.W.2d 678
    (quoted source omitted).
    ¶93    A circuit court may issue a temporary injunction if:
    "(1)    the    movant       is    likely       to    suffer       irreparable         harm    if    a
    temporary injunction is not issued; (2) the movant has no other
    adequate remedy at law; (3) a temporary injunction is necessary
    to preserve the status quo; and (4) the movant has a reasonable
    probability         of     success       on    the     merits."            Milwaukee         Deputy
    Sheriffs'      Ass'n       v.    Milwaukee       Cty.,          
    2016 WI App 56
    ,      ¶20,    
    370 Wis. 2d 644
    , 
    883 N.W.2d 154
    (citing Werner v. A.L. Grootemaat &
    Sons, Inc., 
    80 Wis. 2d 513
    , 520–21, 
    259 N.W.2d 310
    (1977)).                                        We
    review       the    circuit       court's       decision          to     issue    a    temporary
    injunction for an erroneous exercise of discretion.
    Id. III. ANALYSIS
    ¶94    Our inquiry into the constitutionality of the Act's
    guidance document provisions requires that we determine whether
    6
    Nos.    2019AP614-LV & 2019AP622.dk
    the   creation       of   such    a     document    represents       the    exercise      of
    executive      as    opposed      to    legislative       power.      We    then   assess
    whether     the     Act's    guidance        document     provisions       impermissibly
    encroach on the executive branch's authority to promulgate those
    documents.
    A.    The Nature of Executive and Legislative Powers
    ¶95      It is common knowledge that the Wisconsin Constitution
    organizes our government in a tripartite structure.                         Goodland v.
    Zimmerman,          
    243 Wis. 459
    ,        466-67,        
    10 N.W.2d 180
         (1943)
    ("[G]overnmental powers are divided among the three departments
    of    government,           the        legislative,         the      executive,          and
    judicial[.]").              At    the     risk      of    oversimplification,            the
    legislature's authority comprises the power to make the law,4
    whereas the executive's authority consists of executing the law.5
    The   distinction         between      the    two   has     been    described      as   the
    difference between the power to prescribe and the power to put
    something into effect:
    In 1792, Jacques Necker, the famous French
    statesman,   neatly  summed   up   the function   and
    significance of the executive power. Of the function:
    "[I]f by a fiction we were for a moment to personify
    the legislative and the executive powers, the latter
    in speaking of the former might . . . say:   All that
    this man has talked of, I will perform."       Of the
    significance: "The laws would in effect be nothing
    more than counsels, than so many maxims more or less
    sage, without this active and vigilant authority,
    4"The legislative power shall be vested in a senate and
    assembly." Wis. Const. art. IV, § 1.
    5"The executive power shall be vested in a governor."                             Wis.
    Const. art. V, § 1.
    7
    Nos.   2019AP614-LV & 2019AP622.dk
    which assures their empire and transmits to the
    administration the motion of which it stands in need."
    Saikrishna Prakash, The Essential Meaning of Executive Power,
    2003 U. Ill. L. Rev. 701, 819 (2003)                        (quoted source omitted).
    This     commentator      concluded        that,          "[i]n     the       late-eighteenth
    century, someone vested with the executive power and christened
    as     the   chief    executive       enjoyed         the        power       to    control      the
    execution of law."
    Id. ¶96 The
        executive,       however,            is     not     a        legislatively-
    controlled automaton.            Before executing, he must of necessity
    determine for himself what the law requires him to do.                                          As
    Alexander Hamilton said, "[h]e who is to execute the laws must
    first    judge      for   himself     of    their         meaning."               See   Alexander
    Hamilton, Letters of Pacificus No. 1 (June 29, 1793), reprinted
    in 4 The Works of Alexander Hamilton 438 (Henry Cabot Lodge ed.
    1904).       This    is   intrinsic        to       the    very    nature          of   executive
    authority.
    The executive must certainly interpret and apply the
    law; it would be impossible to perform his duties if
    he did not. After all, he must determine for himself
    what the law requires (interpretation) so that he may
    carry it into effect (application).    Our constitution
    not only does not forbid this, it requires it.
    Tetra Tech EC, Inc. v. DOR, 
    2018 WI 75
    , ¶53, 
    382 Wis. 2d 496
    ,
    
    914 N.W.2d 21
    (Kelly, J., lead op.).                        See also Wis. Const. art.
    V,     § 1    ("The       executive        power          shall        be     vested       in    a
    governor . . . ."); Perez v. Mortg. Bankers Ass'n, 
    575 U.S. 92
    ,
    119 (2015) (Thomas, J., concurring) ("It is undoubtedly true
    that the other branches of Government have the authority and
    obligation to interpret the law . . . .").
    8
    Nos.   2019AP614-LV & 2019AP622.dk
    ¶97     The   executive   oftentimes     carries    out   his   functions
    through     administrative    agencies.6        Although      agencies    have
    sometimes    been   criticized   as   a     "headless    fourth     branch   of
    government,"7 they are not——we have only three.                Agencies must
    belong to one of them, and we have said before that they are one
    manifestation of the executive.           Koschkee v. Taylor, 
    2019 WI 76
    ,
    ¶14, 
    387 Wis. 2d 552
    , 
    929 N.W.2d 600
    ("Agencies are considered
    part of the executive branch.").8             This understanding is not
    6  See, e.g., Util. Air Regulatory Grp. v. E.P.A., 
    573 U.S. 302
    , 327 (2014) ("Under our system of government, Congress
    makes laws and the President, acting at times through
    agencies . . . 'faithfully execute[s]' them." (quoting U.S.
    Const. art. II, § 3 (alterations in original))); State ex rel.
    Wisconsin Dev. Auth. v. Dammann, 
    228 Wis. 147
    , 159, 
    277 N.W. 278
    on reh'g, 
    228 Wis. 147
    , 
    280 N.W. 698
    (1938) ("It is fundamental
    that under our constitutional system the governmental power to
    execute the laws is vested in the executive department of the
    state, and can be exercised only by duly constituted officers
    thereof."); DOR v. Nagle-Hart, Inc., 
    70 Wis. 2d 224
    , 226–27, 
    234 N.W.2d 350
    (1975) ("It is for the department[s] to implement and
    carry out the mandate of the legislative enactments . . . and
    stop at the limits of such legislative mandate or direction.");
    Black & Decker, Inc. v. DILHR, No. 1988AP0409, unpublished slip
    op. (Sept. 15, 1988) (Wherein the court of appeals described the
    function of an agency as one of carrying out and implementing a
    legislative act.).
    7  Peter L. Strauss Agencies' Place in Government, 84
    Colum. L. Rev. 573, 578 (1984) (internal marks and quoted source
    omitted).
    8  This is also apparent from the fact that the governor
    appoints agency secretaries, all of whom serve at the governor's
    pleasure.   Wis. Stat. § 15.05(1)(a) ("If a department is under
    the direction and supervision of a secretary, the secretary
    shall be nominated by the governor, and with the advice and
    consent of the senate appointed, to serve at the pleasure of the
    governor.").
    9
    Nos.   2019AP614-LV & 2019AP622.dk
    unique to Wisconsin.9         And when an administrative agency acts
    (other    than   when    it   is    exercising    its    borrowed    rulemaking
    function), it is exercising executive power.                  See, e.g., Jones
    v. United States, 
    137 U.S. 202
    , 217 (1890) ("[T]here can be no
    doubt that it [the power "conferred on the president of the
    United States"] may be declared through the department of state,
    whose acts in this regard are in legal contemplation the acts of
    the   president."       (emphasis    added));     Wolsey     v.   Chapman,    
    101 U.S. 755
    , 769 (1879) ("[T]he acts of the heads of departments,
    within the scope of their powers, are in law the acts of the
    President.");    Mistretta     v.    United   States,      
    488 U.S. 361
    ,   424
    (1989) (Scalia, J., dissenting) ("Although the Constitution says
    that '[t]he executive Power shall be vested in a President of
    the United States of America,' [U.S. Const.] Art. II, § 1, it
    was never thought that the President would have to exercise that
    9See, e.g., Town of Walkerton v. New York, C. & St. L. R.
    Co., 
    18 N.E.2d 799
    , 803 (Ind. 1939) ("Under our form of
    government an administrative agency belongs to the executive
    department."); Barrett v. Tennessee Occupational Safety & Health
    Review     Comm'n,    
    284 S.W.3d 784
    ,     789    (Tenn.  2009)
    ("Administrative agencies are part of the executive branch of
    government."); Meyers v. Chapman Printing Co., 
    840 S.W.2d 814
    ,
    820 (Ky. 1992) ("Decisionmaking performed by an administrative
    agency is an executive function."); Judges of 74th Judicial
    Dist.   v.   Bay   Cty.,   
    190 N.W.2d 219
    ,   226   (Mich. 1971)
    ("Administrative agencies are a part of the executive branch of
    government. While they often act in a quasi-judicial capacity,
    it is recognized that they are established to perform
    essentially executive functions."); Matter of Kallen, 
    455 A.2d 460
    , 463 (N.J. 1983) ("Administrative agencies are the
    arms of the executive branch of government that implement the
    laws passed by the Legislature."); Muddy Boys, Inc. v. Dep't of
    Commerce,     
    440 P.3d 741
    ,    747    (Ut.    Ct.   App.  2019)
    ("[A]dministrative agencies are part of the executive.").
    10
    Nos.      2019AP614-LV & 2019AP622.dk
    power personally.         He may generally authorize others to exercise
    executive      powers,       with    full       effect          of    law,     in       his   place."
    (alterations in original)).; Frank B. Cross, Executive Orders
    12,291   and     12,498:        A    Test       Case       in    Presidential            Control     of
    Executive Agencies, 4 J.L. & Pol. 483, 507 (1988) ("Obviously,
    one   person     cannot       execute         all     the        functions         of    government
    personally.       In     order           to     carry           out      his       constitutional
    responsibility,        the    president             must    delegate         his    authority         to
    other executive officers.").
    ¶98   In    addition          to    the       executive          power       that       agencies
    exercise as a consequence of their placement in the executive
    branch, they also exercise some limited legislative power.                                          This
    second type of authority depends entirely on the legislature's
    delegation of the power to promulgate rules that have the force
    and   effect     of    law.          Wis.       Stat.        § 227.11(2)            ("Rule-making
    authority is expressly conferred on an agency[.]"); Kieninger v.
    Crown Equip. Corp., 
    2019 WI 27
    , ¶16 n.8, 
    386 Wis. 2d 1
    , 
    924 N.W.2d 172
          ("Administrative rules enacted pursuant to statutory
    rulemaking      authority       have          the    force         and    effect        of    law    in
    Wisconsin." (quoted source omitted)).                            We have recognized before
    that when an agency promulgates a rule, it is exercising "a
    legislative      power[.]"           Koschkee,             
    387 Wis. 2d 552
    ,           ¶39.       An
    agency, however, "has no inherent constitutional authority to
    make rules . . . ."            Martinez v. DILHR, 
    165 Wis. 2d 687
    , 698,
    
    478 N.W.2d 582
    (1992).              To the extent it exists, it comes solely
    through express delegation from the legislature.                                    Because this
    11
    Nos.       2019AP614-LV & 2019AP622.dk
    capability        is     only    on     loan,10     agencies           necessarily         "remain
    subordinate to the legislature with regard to their rulemaking
    authority."           Koschkee, 
    387 Wis. 2d 552
    , ¶18.
    ¶99       The     constitutional            authority            of        the     executive
    encompasses           determining       what     the      law        requires      as    well   as
    applying it (preferably in that order).                          Because the executive's
    power is supplemented by a legislatively-delegated authority to
    promulgate rules that have the force and effect of law, we must
    determine what manner of authority an agency uses to create
    guidance        documents       before    we     can      evaluate          the   legislature's
    right      to    control       them.      If      it      is     a    delegated         rulemaking
    authority, then the legislature's power to dictate their content
    and manner of promulgation would be almost beyond question.                                     If,
    however,        the      authority       to      create          guidance         documents     is
    executive, then we must consider whether the legislature's reach
    extends     far       enough    to     control      how    members          of    the    executive
    branch explain statutes and provide guidance or advice about how
    administrative agencies are likely to apply them.
    ¶100 Our analysis on this point necessarily begins with the
    undisputed understanding that a guidance document does not have
    the force or effect of law.                    The Act explicitly says so:                      "A
    guidance document does not have the force of law and does not
    provide the authority for implementing or enforcing a standard,
    requirement, or threshold, including as a term or condition of
    any     license."              2017     Wis.      Act.         369,      § 38      (Wis.     Stat.
    "As a legislative creation, [an agency's] . . . rule-
    10
    making powers can be repealed by the legislature." Martinez v.
    DILHR, 
    165 Wis. 2d 687
    , 698, 
    478 N.W.2d 582
    (1992).
    12
    Nos.    2019AP614-LV & 2019AP622.dk
    § 227.112(3)).      That's an important place to start because right
    away it establishes that, unlike a rule,11 the executive branch
    needs no borrowed authority from the legislature to create a
    guidance document.        In fact, the executive was creating them
    long before the legislature passed the Act and gave them that
    name.      The Act implicitly recognizes this by not even purporting
    to   delegate    the   authority     to   create     such   documents   to    the
    executive——it assumed the power already resided there.
    ¶101 Having      established    that   guidance       documents   are   not
    rules, we must determine what manner of thing they are.                 The Act
    describes them as:
    [A]ny formal or official document or communication
    issued by an agency, including a manual, handbook,
    directive, or informational bulletin, that does any of
    the following:
    1. Explains the agency's implementation of a statute
    or rule enforced or administered by the agency,
    including the current or proposed operating procedure
    of the agency.
    2. Provides guidance or advice with respect to how the
    agency is likely to apply a statute or rule enforced
    or administered by the agency, if that guidance or
    advice is likely to apply to a class of persons
    similarly affected.
    2017 Wis. Act 369, § 31 (Wis. Stat. § 227.01(3m)(a)1.-2.).12
    Koschkee v. Taylor, 
    2019 WI 76
    , ¶18, 
    387 Wis. 2d 552
    , 929
    
    11 N.W.2d 600
       (Executive   "agencies    ha[ve]    no    inherent
    constitutional authority to make rules[.]" (some alterations in
    original)).
    12   The Act also describes what a guidance document is not:
    (b) "Guidance document" does not include any of the
    following:
    13
    Nos.   2019AP614-LV & 2019AP622.dk
    1. A rule that has been promulgated and that is
    currently in effect or a proposed rule that is in the
    process of being promulgated.
    2. A standard adopted, or a statement of policy or
    interpretation made, whether preliminary or final, in
    the decision of a contested case, in a private letter
    ruling under s. 73.035, or in an agency decision upon
    or disposition of a particular matter as applied to a
    specific set of facts.
    3. Any document or activity described in sub. (13) (a)
    to (zz), except that "guidance document" includes a
    pamphlet or other explanatory material described under
    sub. (13) (r) that otherwise satisfies the definition
    of "guidance document" under par. (a).
    4. Any document that any statute specifically provides
    is not required to be promulgated as a rule.
    5. A declaratory ruling issued under s. 227.41.
    6. A pleading or brief filed in court by the state, an
    agency, or an agency official.
    7. A letter or written legal advice of the department
    of justice or a formal or informal opinion of the
    attorney general, including an opinion issued under s.
    165.015 (1).
    8. Any document or communication for which a procedure
    for public input, other than that provided under s.
    227.112 (1), is provided by law.
    9. Any document or communication that is not subject
    to the right of inspection and copying under s.
    19.35(1).
    2017 Wis. Act. 369, § 31 (Wis. Stat. § 227.01(3m)(b)1.-9.).
    14
    Nos.   2019AP614-LV & 2019AP622.dk
    ¶102 The     Act's     plain   language      allows        us    to    discern   the
    following essential attributes of guidance documents.13                        They are
    not law, they do not have the force or effect of law, and they
    provide no authority for implementing or enforcing standards or
    conditions.      They simply "explain" statutes and rules, or they
    "provide guidance or advice" about how the executive branch is
    "likely    to    apply"     a   statute     or     rule.             They    impose    no
    obligations,     set   no   standards,      and    bind     no       one.      They   are
    communications about the law——they are not the law itself.                            They
    communicate intended applications of the law——they are not the
    actual execution of the law.           Functionally, and as a matter of
    law, they are entirely inert.             That is to say, they represent
    nothing more than the knowledge and intentions of their authors.
    It is readily apparent, therefore, that the executive need not
    borrow    any   legislative     authority,       nor     seek    the       legislature's
    permission, to create guidance documents.                       It could hardly be
    otherwise.      This creative power is necessarily inherent to the
    executive because no other branch of government has even the
    13State ex rel. Kalal v. Circuit Court for Dane Cty., 
    2004 WI 58
    , ¶45, 
    271 Wis. 2d 633
    , 
    681 N.W.2d 110
    ("Statutory language
    is given its common, ordinary, and accepted meaning, except that
    technical or specially-defined words or phrases are given their
    technical or special definitional meaning.").
    15
    Nos.   2019AP614-LV & 2019AP622.dk
    theoretical ability to know the executive's mind with respect to
    the law he is to execute.14
    B.    May the Legislature Regulate the Executive's Guidance
    Documents?
    ¶103 Because the executive branch has the native authority
    to   create   and   disseminate   guidance   documents,   we   must   next
    determine whether the legislature may nonetheless prescribe the
    content or method of disseminating such documents.             The answer
    depends on whether the creation of guidance documents represents
    an exercise of the executive's core function, or merely a power
    shared with the legislature.
    The separation of powers doctrine "envisions a system
    of separate branches sharing many powers while
    jealously guarding certain others, a system of
    'separateness   but    interdependence,   autonomy   but
    reciprocity.'"    State ex rel. Friedrich v. Circuit
    Court for Dane Cty., 
    192 Wis. 2d 1
    , 14, 
    531 N.W.2d 32
          (1995) (quoting Youngstown Sheet & Tube Co. v. Sawyer,
    
    343 U.S. 579
    , 635 (1952) (Jackson, J., concurring)).
    "The   constitutional    powers  of   each    branch  of
    government fall into two categories: exclusive powers
    and shared powers."    State v. Horn, 
    226 Wis. 2d 637
    ,
    643, 
    594 N.W.2d 772
    (1999). "Shared powers lie at the
    intersections of these exclusive core constitutional
    powers," and "[t]hese '[g]reat borderlands of power'
    are not exclusive to any one branch."
    Id. at 643-44
          (quoting 
    Friedrich, 192 Wis. 2d at 14
    ); see also State
    v. Holmes, 
    106 Wis. 2d 31
    , 42–43, 
    315 N.W.2d 703
          (1982).   Although the "branches may exercise [shared]
    power within these borderlands," they "may [not]
    14Chief Justice Roggensack suggests that this is a "change
    in    the    law[.]"       See    Chief   Justice   Roggensack's
    concurrence/dissent, ¶150.   But she does not say what it is a
    change from. We have never said that the creative power to make
    a guidance document resides somewhere other than the executive
    branch, and the Chief Justice cites no authority suggesting we
    have.
    16
    Nos.    2019AP614-LV & 2019AP622.dk
    unduly burden or substantially interfere with another
    branch." 
    Horn, 226 Wis. 2d at 644
    .
    Tetra     Tech     EC,   Inc.,      
    382 Wis. 2d 496
    ,        ¶46    (alterations      in
    original).
    ¶104 A        branch's    core       powers    are     those    that   define     its
    essential        attributes.15            With     respect     to    these,     we    have
    previously       recognized      that     "[e]ach     branch    has     exclusive     core
    constitutional powers, into which the other branches may not
    intrude."        Flynn v. DOA, 
    216 Wis. 2d 521
    , 545, 
    576 N.W.2d 245
    .
    "Core powers," as has been previously observed, "are not for
    sharing."        Tetra Tech EC, Inc., 
    382 Wis. 2d 496
    , ¶47.                      "Shared
    powers[, however,] lie at the intersections of these exclusive
    core constitutional powers," and "[t]hese '[g]reat borderlands
    of power' are not exclusive to any one branch."                               
    Horn, 226 Wis. 2d at 643
    -44      (quoting       
    Friedrich, 192 Wis. 2d at 14
    (alterations        in   original)).              "Although     the     'branches      may
    exercise    [shared]       power     within       these   borderlands,'       they    'may
    [not]     unduly    burden     or    substantially          interfere    with    another
    branch.'"        Tetra Tech EC, Inc., 
    382 Wis. 2d 496
    , ¶46 (quoting
    
    Horn, 226 Wis. 2d at 644
               (alterations in original)).                  So if
    15 The Chief Justice's concurrence says there is no basis
    for this definition of core powers.          See Chief Justice
    Roggensack's concurrence/dissent, ¶152.     That is simply not
    true; the constitution itself constitutes the source. First, we
    know that "[e]ach branch has exclusive core constitutional
    powers[.]" State v. Horn, 
    226 Wis. 2d 637
    , 643, 
    594 N.W.2d 772
    (1999).     These core powers are the "zones of authority
    constitutionally established for each branch of government[.]"
    State ex rel. Fiedler v. Wisconsin Senate, 
    155 Wis. 2d 94
    , 100,
    
    454 N.W.2d 770
    (1990). In other words, a core power is a power
    vested by the constitution that distinguishes that branch from
    the other two.
    17
    Nos.   2019AP614-LV & 2019AP622.dk
    guidance documents fall somewhere in the realm of shared powers,
    the legislature would conceivably retain some claim of right to
    govern their content and dissemination.                        But if they lie within
    the executive's core authority, the legislature must retain a
    constitutionally-respectful distance.
    ¶105 We    conclude       that    the      creation      and    dissemination        of
    guidance documents fall within the executive's core authority.
    Guidance       documents,        as   the     legislature         has       defined    them,
    necessarily exist outside of the legislature's authority because
    of what they are and who creates them.                     As we explained above, a
    guidance       document    is     something        created       by    executive      branch
    employees through the exercise of executive authority native to
    that branch of government.                   Creation of a guidance document
    requires no legislative authority and no legislative personnel.
    A guidance document cannot affect what the law is, cannot create
    a policy, cannot impose a standard, and cannot bind anyone to
    anything.
    ¶106 This      is   all    true      because      guidance      documents      merely
    explain statutes and rules, or provide guidance or advice about
    how the executive is likely to apply them.                       Thought must precede
    action, of course, and guidance documents are simply the written
    record    of    the    executive's          thoughts      about       the    law    and    its
    execution.       They contain the executive's interpretation of the
    laws,    his    judgment    about        what     the    laws    require      him     to   do.
    Because this intellectual homework is indispensable to the duty
    to "take care that the laws be faithfully executed," Wis. Const.
    art.    V,     § 4,   it   is     also      inseparable         from    the    executive's
    18
    Nos.   2019AP614-LV & 2019AP622.dk
    constitutionally-vested power.                         It is all one, and has been one
    since    the    creation              of       our     tripartite      form       of     government
    centuries ago.         See 
    Hamilton, supra
    , ¶96; see also Kendall v.
    U.S. ex rel. Stokes, 
    37 U.S. 524
    , 600 (1838) ("If, therefore,
    the executive be clearly satisfied as to the meaning of such a
    law, it is his bounden duty to see that the subordinate officers
    of his department conform with fidelity to that meaning; for no
    other execution, however pure the motive from which it springs,
    is a faithful execution of the law." (emphasis added)); Tetra
    Tech    EC,    Inc.,       
    382 Wis. 2d
        496,    ¶53    ("The   executive          must
    certainly interpret and apply the law; it would be impossible to
    perform his duties if he did not. After all, he must determine
    for himself what the law requires (interpretation) so that he
    may carry it into effect (application)."); State v. Whitman, 
    196 Wis. 472
    , 
    220 N.W. 929
    (1928) ("Every executive officer in the
    execution of the law must of necessity interpret it in order to
    find out what it is he is required to do.").
    ¶107 Sections         33        and       38     of    the     Act   are        problematic,
    therefore, because they insert the legislature as a gatekeeper
    between the analytical predicate to the execution of the laws
    and the actual execution itself.                           The legislature may see itself
    as a benign gatekeeper between the two, but that is entirely
    irrelevant.         The question is whether it may install a gate at
    all.    If the legislature can regulate the necessary predicate to
    executing      the     law,           then       the       legislature      can     control      the
    execution      of    the    law        itself.             Such     power   would       demote   the
    executive       branch           to        a     wholly-owned          subsidiary          of    the
    19
    Nos.   2019AP614-LV & 2019AP622.dk
    legislature.        Capturing the executive's ability to communicate
    his knowledge, intentions, and understanding of the laws he is
    to execute makes him a drone without the energy or independent
    wherewithal to act as a co-equal member of government.16
    ¶108 The legislature may enact the laws the executive is
    duty-bound to execute.          But it may not control his knowledge or
    intentions about those laws.              Nor may it mute or modulate the
    communication       of   his   knowledge       or   intentions      to   the      public.
    Because there are no set of facts pursuant to which § 33 (to the
    extent it applies to guidance documents) and § 38 would not
    impermissibly       interfere      with   the    executive's       exercise       of   his
    core constitutional power, they are in that respect facially
    unconstitutional.
    C.        Challenges to The Remaining Guidance Document Provisions
    ¶109 The     plaintiffs'      challenge       to    the    guidance     document
    provisions of 2017 Wis. Act 369 goes beyond §§ 33 and 38, but as
    it reaches §§ 31, 65-71, and 104-05, the focus of their argument
    becomes so diffuse that the justification for declaring them
    unconstitutional         appears    to    rely      almost       entirely    on    their
    The problem is especially acute because this regulation
    16
    on the executive's pre-execution analysis and communication is
    infinitely recursive.    That is, if he wished to publish a
    bulletin about his understanding of 2017 Wis. Act 369, §§ 33 and
    38 or how he intends to implement them, that bulletin itself
    would have to go through the legislatively-mandated pre-
    clearance procedure. And if he wished to communicate about the
    communication he was required to submit to the legislative
    mandate, that communication too would be subject to pre-
    clearance.   Ultimately, the Act's guidance document provisions
    prohibit the executive branch of government from publicizing his
    thoughts, knowledge, and intentions about the laws he is to
    execute without first surmounting the legislature's hurdles.
    20
    Nos.    2019AP614-LV & 2019AP622.dk
    association       with    §§ 33         and     38.      As     we    now        explain,       the
    plaintiffs have not established that these remaining provisions
    "cannot      be   enforced      'under         any    circumstances.'"                Mayo,    
    383 Wis. 2d 1
    , ¶24 (quoted source omitted).
    ¶110 Section      31     of      2017    Wis.    Act     369    defines          the    term
    "guidance document" 
    (see supra
    , ¶90).                          It is conceivable that
    the legislature might introduce an unneeded and even unwanted
    entry into our legal glossary, but the parties do not describe
    how that could even potentially impose upon or detract from any
    part    of     the    executive's          vested      authority.             SEIU's          brief
    acknowledged         creation      of    this     definition,         noted       the    circuit
    court's      global    lack     of      faith    in    the     utility      of    any     of    the
    guidance document provisions, and asserted that this provision
    (in conjunction with all the other guidance document provisions)
    "improperly       intrude     on     the      Governor's       authority         to   implement
    state law."          The Governor said pretty much the same thing, and
    the Attorney General did not specifically mention § 31 at all.
    The parties, therefore, have identified no basis for asserting
    that there is no constitutional application of § 31, and we see
    none.
    ¶111 Sections 65-7117 make guidance documents reviewable by
    the courts in the same fashion as administrative rules.                                  Each of
    17   Sections 65 to 71 of the Act provide:
    Section 65. 227.40 (1) of the statutes is amended to
    read: 227.40 (1) Except as provided in sub. (2), the
    exclusive means of judicial review of the validity of
    a rule or guidance document shall be an action for
    declaratory judgment as to the validity of the rule or
    guidance document brought in the circuit court for the
    county where the party asserting the invalidity of the
    21
    Nos.   2019AP614-LV & 2019AP622.dk
    rule or guidance document resides or has its principal
    place of business or, if that party is a nonresident
    or does not have its principal place of business in
    this state, in the circuit court for the county where
    the dispute arose. The officer or other agency whose
    rule or guidance document is involved shall be the
    party defendant.   The summons in the action shall be
    served as provided in s. 801.11 (3) and by delivering
    a copy to that officer or, if the agency is composed
    of more than one person, to the secretary or clerk of
    the agency or to any member of the agency. The court
    shall render a declaratory judgment in the action only
    when it appears from the complaint and the supporting
    evidence that the rule or guidance document or its
    threatened application interferes with or impairs, or
    threatens to interfere with or impair, the legal
    rights and privileges of the plaintiff. A declaratory
    judgment may be rendered whether or not the plaintiff
    has first requested the agency to pass upon the
    validity of the rule or guidance document in question.
    Section 66. 227.40 (2) (intro.) of the statutes is
    amended to read: 227.40 (2) (intro.) The validity of
    a rule or guidance document may be determined in any
    of the following judicial proceedings when material
    therein:
    Section 67. 227.40 (2) (e) of the statutes is amended
    to read: 227.40 (2) (e) Proceedings under s. 66.191,
    1981 stats., or s. 40.65 (2), 106.50, 106.52, 303.07
    (7) or 303.21 or ss. 227.52 to 227.58 or under ch.
    102, 108 or 949 for review of decisions and orders of
    administrative agencies if the validity of the rule or
    guidance document involved was duly challenged in the
    proceeding before the agency in which the order or
    decision sought to be reviewed was made or entered.
    Section 68. 227.40 (3) (intro.) of the statutes is
    renumbered 227.40 (3) (ag) and amended to read:
    227.40 (3) (ag) In any judicial proceeding other than
    one set out above under sub. (1) or (2), in which the
    invalidity of a rule or guidance document is material
    to the cause of action or any defense thereto, the
    assertion of such that invalidity shall be set forth
    in the pleading of the party so maintaining the
    invalidity of such the rule or guidance document in
    that   proceeding.    The   party  so  asserting  the
    invalidity of such the rule or guidance document
    22
    Nos.   2019AP614-LV & 2019AP622.dk
    shall, within 30 days after the service of the
    pleading in which the party sets forth such the
    invalidity, apply to the court in which such the
    proceedings are had for an order suspending the trial
    of said the proceeding until after a determination of
    the validity of said the rule or guidance document in
    an action for declaratory judgment under sub. (1)
    hereof.
    Section 69. 227.40 (3) (a) of the statutes is
    renumbered 227.40 (3) (ar) and amended to read:
    227.40 (3) (ar)      Upon the hearing of such the
    application, if the court is satisfied that the
    validity of such the rule or guidance document is
    material to the issues of the case, an order shall be
    entered staying the trial of said proceeding until the
    rendition   of   a  final   declaratory  judgment   in
    proceedings to be instituted forthwith by the party
    asserting the invalidity of such the rule or guidance
    document.    If the court shall find finds that the
    asserted invalidity of a the rule or guidance document
    is not material to the case, an order shall be entered
    denying the application for stay.
    Section 70. 227.40 (3) (b) and (c) of the statutes are
    amended to read: 227.40 (3) (b) Upon the entry of a
    final order in said the declaratory judgment action,
    it shall be the duty of the party who asserts the
    invalidity of the rule or guidance document to
    formally advise the court of the outcome of the
    declaratory judgment action so brought as ordered by
    the court.     After the final disposition of the
    declaratory judgment action the court shall be bound
    by and apply the judgment so entered in the trial of
    the proceeding in which the invalidity of the rule or
    guidance document is asserted.
    (c) Failure to set forth the invalidity of a rule or
    guidance document in a pleading or to commence a
    declaratory judgment proceeding within a reasonable
    time pursuant to such the order of the court or to
    prosecute such the declaratory judgment action without
    undue delay shall preclude such the party from
    asserting or maintaining such that the rule or
    guidance document is invalid.
    Section 71. 227.40 (4) (a) of the statutes is amended
    to read:   227.40 (4) (a)   In any proceeding pursuant
    23
    Nos.   2019AP614-LV & 2019AP622.dk
    these sections does little more than add the term "guidance
    document" to various subsections of Wis. Stat. § 227.40, which
    formerly applied only to rules.                 The parties do not make any
    particularized      argument     against       judicial      review    of    guidance
    documents, and we see no reason why the legislature's provision
    for such review differs so profoundly from judicial review of
    administrative      rules      that   the     former       would    necessarily    be
    unconstitutional under any circumstances, while the latter is
    not.      Mayo,     
    383 Wis. 2d 1
    ,        ¶24     (A   statute     is    facially
    unconstitutional only when it "cannot be enforced 'under any
    circumstances.'" (quoted source omitted)).
    ¶112 The final two provisions of 2017 Wis. Act 369 that
    implicate guidance documents are §§ 104 and 105.                        Section 104
    establishes the initial applicability of § 33.                      It says:      "(1)
    Agency publications.           The treatment of [Wis. Stat. § ]227.05
    with respect to printed publications first applies to guidance
    documents, forms, pamphlets, or other informational materials
    that   are   printed      60   days   after     the    effective      date   of   this
    subsection."      Section 105 is similarly unremarkable in that it
    simply determines the effective date of the Act's provisions:
    "(1)   Agency     publications.        The     treatment       of   [§] 227.05     and
    to this section for judicial review of a rule or
    guidance document, the court shall declare the rule or
    guidance document invalid if it finds that it violates
    constitutional provisions or exceeds the statutory
    authority of the agency or was promulgated or adopted
    without compliance with statutory rule-making or
    adoption procedures.
    2017 Wis. Act. 369, §§ 65-71 (amending Wis. Stat. § 227.40).
    24
    Nos.    2019AP614-LV & 2019AP622.dk
    Section 104 (1) takes effect on the first day of the 7th month
    beginning after publication."              None of the respondents provide
    any    reason     to    believe          these       provisions         are     facially
    unconstitutional, and no such reason immediately presents itself
    to us.
    IV.   THE CONSEQUENCES
    ¶113 Sections 33 and 38 are before us today on different
    procedural footings.          The latter is here on a straightforward
    review of the circuit court's denial of a motion to dismiss.
    Section 33, however, presents in a somewhat awkward posture for
    two   reasons.      First     SEIU   does      not    claim      this       provision   is
    unconstitutional.       That       allegation        appears     in    the     Governor's
    cross-claim.      The Legislative Defendants' answer to the cross-
    claim asserts the Governor does not have standing to challenge
    the   constitutionality       of     a   law.         However,        the     Legislative
    Defendants did not advance that argument in this court, and they
    fully briefed their position on the section's constitutionality.
    Because standing is a matter of judicial prudence, Milwaukee
    District Council 48 v. Milwaukee County, 
    2001 WI 65
    , ¶38 n.7,
    
    244 Wis. 2d 333
    ,     
    627 N.W.2d 866
            ("[S]tanding         is    generally    a
    matter   of      judicial     policy       rather         than    a     jurisdictional
    prerequisite."), and it was not argued here, we will not apply
    it.   State v. Chamblis, 
    2015 WI 53
    , ¶54 n.15, 
    362 Wis. 2d 370
    ,
    
    864 N.W.2d 806
    ("We choose not to address that argument because
    it was not briefed by the parties.").                        We do not opine on
    whether the Governor actually has standing; we simply do not
    address it.
    25
    Nos.    2019AP614-LV & 2019AP622.dk
    ¶114 The second postural oddity with respect to § 33 is
    that we are reviewing it in the context of determining whether
    the circuit court properly issued a temporary injunction against
    its enforcement.       That is to say, this section was not included
    in the Legislative Defendants' motion to dismiss.                          That means
    our task is to determine whether the circuit court erroneously
    exercised its discretion in issuing the temporary injunction.
    Such interlocutory relief is available when:                   "(1) the movant is
    likely to suffer irreparable harm if a temporary injunction is
    not issued; (2) the movant has no other adequate remedy at law;
    (3) a temporary injunction is necessary to preserve the status
    quo; and (4) the movant has a reasonable probability of success
    on   the    merits."        Milwaukee          Deputy    Sheriffs'       Ass'n,     
    370 Wis. 2d 644
    , ¶20 (citing 
    Werner, 80 Wis. 2d at 520
    –21).
    ¶115 We     conclude    the    circuit       court     did    not   erroneously
    exercise its discretion in issuing the temporary injunction with
    respect     to    §§ 33     and    38      because       those     provisions       are
    unconstitutional, and it would therefore be unlawful to enforce
    them.     Justice Hagedorn, however, does not believe this ends the
    inquiry:      "The   majority      could       have   determined     the    claim   is
    likely to be successful, and gone on to analyze the remaining
    factors."    Justice Hagedorn's concurrence/dissent, ¶211 n.6.
    ¶116 Justice Hagedorn acknowledges that one aspect of the
    temporary injunction test is the likelihood of success on the
    merits.     The merits in this case depend entirely on whether the
    challenged       portions     of        the     Act      are      unconstitutional.
    Consequently, our review unavoidably requires us to inquire into
    26
    Nos.     2019AP614-LV & 2019AP622.dk
    the    constitutionality           of    the    enjoined      provisions,        including
    §§ 33 and 38.          We performed that inquiry, and have concluded
    that both of those provisions are unconstitutional.
    ¶117 Justice        Hagedorn's       insistence        that    we     analyze     the
    remaining factors makes sense only if there are circumstances
    under which it would be appropriate to continue enforcing a law
    we have already decided is unconstitutional.                          If we concluded
    that the movant would not suffer irreparable harm, would that
    make     it     acceptable         for     the      executive         to     enforce     an
    unconstitutional           law?     If     there     were     an    alternative      legal
    remedy,   would       we    tell    the    circuit      court      that    the   continued
    application of an unconstitutional law is legally warranted?                              If
    the status quo would not change without a temporary injunction,
    would that mean the unconstitutional law could remain in effect?
    Obviously not.
    ¶118 Justice Hagedorn's concerns grow out of a failure to
    account for the supreme court's position in the judiciary.                                If
    we were the circuit court, or the court of appeals, he would be
    correct——consideration of each of the remaining factors would be
    necessary      because      the    relief      sought     would      be    interlocutory.
    That is to say, when the case was pending in the circuit court,
    the merits of the plaintiffs' claims were in question because a
    declaration      of    unconstitutionality              was     subject     to    judicial
    review.       Once this court opines on a state statute's fidelity to
    the    state    constitution,           however,    the     ultimate       result   is   no
    longer in doubt because there is no further judicial review of
    our decision (unless it implicates federal law, which this does
    27
    Nos.   2019AP614-LV & 2019AP622.dk
    not).18     So     the    only    purpose    in    considering       the     remaining
    temporary       injunction     factors     would    be    if    we   would    consider
    remanding the case to the circuit court to decide whether a law
    we declared unconstitutional should nevertheless be enforced.
    We believe such a result would be anomalous and contrary to law.
    ¶119 Accordingly, we conclude that the circuit court erred
    in denying the Legislative Defendants' motion to dismiss with
    respect to 2017 Wis. Act 369, §§ 31, 65-71, and 104-05 because
    the plaintiffs have not established that they cannot be enforced
    under     any     set    of    circumstances.             Further,      because    the
    interlocutory            relief        rested        on         their         asserted
    unconstitutionality, which we have now rejected, the temporary
    injunction can have no further force or effect with respect to
    those provisions.          However, because we have declared that 2017
    Wis. Act 369, §§ 33 and 38 are unconstitutional, there can be no
    reason to further consider whether the circuit court erroneously
    exercised its discretion in granting the temporary injunction
    with respect to these provisions.
    V.   THE DISSENTS
    ¶120 Justice Hagedorn says our reasoning "is wrong on the
    facts and runs contrary to the plain language of the laws the
    legislature passed.           This means its constitutional conclusion is
    similarly       faulty."         Justice    Hagedorn's         concurrence/dissent,
    18J. C. Penney Co. v. Wisconsin Tax Comm'n, 
    238 Wis. 69
    ,
    72, 
    298 N.W. 186
    (1941), overruled in part on different grounds
    by Wisconsin Dep't of Taxation v. Nash-Kelvinator Corp., 
    250 Wis. 533
    , 
    27 N.W.2d 889
    (1947) ("As we understand the law, our
    construction of the state statute is conclusive upon the Supreme
    Court of the United States.").
    28
    Nos.    2019AP614-LV & 2019AP622.dk
    ¶191.    But he never identifies any error in our understanding of
    the laws the legislature passed.                 In fact, there appears to be
    no   disagreement     at    all    with       respect        to    what    §§     33    and   38
    actually    do.       Instead,     the     disagreement             is    over     what       the
    constitution       requires.       It    is    also     about        Justice      Hagedorn's
    misunderstanding of what we said about the constitution, which
    he mischaracterizes as having rejected §§ 33 and 38 "on the
    thinnest     of     foundations——its           misguided            determination            that
    guidance documents regulate executive branch thought."
    Id. At the
    risk of repeating what we have already said, this is not
    just    about     regulating      the    executive's              thought——it      is     about
    interfering in the relationship between the executive branch's
    interpretation        of    the     law,        its      communication             of        that
    interpretation to the public, and its execution of the law.
    ¶121 Then, after selectively ignoring our analysis, Justice
    Hagedorn announces that "[g]uidance documents regulate executive
    branch     communications         with    the     public——a              permissible          and
    longstanding area of legislative regulation."
    Id. But how
    would he know this is constitutionally permissible?                             His opinion
    makes no effort to determine what lies within the executive
    branch's    core    authority,      or    how    the     statutory          definition         of
    "guidance document" might relate to that authority.                                He simply
    asserts that "[b]y enacting the guidance document provisions,
    the legislature is carrying out its function of determining what
    the law should be by passing laws pursuant to its constitutional
    authority."
    Id., ¶198. If
    this is the correct standard for
    determining       whether   the     legislature         invaded           the    executive's
    29
    Nos.    2019AP614-LV & 2019AP622.dk
    exclusive zone of authority (and his opinion contains no further
    exploration of this concept), then there can be no structural
    limitations on the scope of laws the legislature may adopt.                         Of
    course §§ 33 and 38 are laws the legislature adopted under its
    constitutional      authority     to   make    the   law.       That   is    not   the
    question.        The question is whether, in making this law, the
    legislature legislated on something the constitution says it may
    not.
    The Constitution is either a superior, paramount law,
    unchangeable by ordinary means, or it is on a level
    with ordinary legislative acts, and, like other acts,
    is alterable when the legislature shall please to
    alter it.    If the former part of the alternative be
    true,   then   a  legislative  act  contrary  to  the
    Constitution is not law; if the latter part be true,
    then written Constitutions are absurd attempts on the
    part of the people to limit a power in its own nature
    illimitable.
    Marbury     v.    Madison,    5   U.S.    (1    Cranch)        137,    177   (1803).
    Ultimately, because Justice Hagedorn offers no constitutional
    analysis, his opinion is little more than an invitation to place
    our faith in his personal pronouncement about what is and is not
    within the executive branch's core authority.
    ¶122 We part ways with Justice Hagedorn's belief that the
    legislature's power to command the executive branch to create
    and disseminate a document is coextensive with the power to ban
    the executive branch from creating and disseminating a document
    unless it complies with the legislature's content (§ 33) and
    publication       (§ 38)     requirements.             There     is    no    logical
    correlation between those two concepts, and Justice Hagedorn's
    opinion does nothing to link them.             Nonetheless, the bulk of his
    30
    Nos.    2019AP614-LV & 2019AP622.dk
    opinion      is       simply    an    extended        discussion         of     statutes       that
    require      the       executive       branch        to    create       certain        documents,
    followed by his assumption that this confers on the legislature
    the power to prevent the executive branch from                                      creating and
    disseminating              documents        unless         they         comply        with      the
    legislature's          content       and    publication           requirements.           Justice
    Hagedorn introduces this part of his analysis by accusing the
    court of resting its analysis on "its mistaken interpretation of
    what      guidance             documents        are."                  Justice         Hagedorn's
    concurrence/dissent,             ¶192.        He     then       proceeds       to     essentially
    repeat       the      statute's       definition           of     guidance       documents,      a
    definition on which we based our entire analysis.                                     As relevant
    here,        a        guidance       document             "[e]xplains           the      agency's
    implementation of a statute or rule[,]" or "[p]rovides guidance
    or advice with respect to how the agency is likely to apply a
    statute or rule[.]"               See 2017 Wis. Act 369, § 31 (Wis. Stat.
    § 227.01(3m)(a)1.-2.).                 Because the executive                   branch (through
    its     agencies)          creates     and      issues          guidance        documents,      it
    necessarily            follows       that     they         contain        the         executive's
    explanations, or the executive's guidance or advice.                                   Naturally,
    that means the explanations, guidance, and advice must originate
    in the minds of executive branch employees, which further means
    guidance documents are nothing but the written manifestations of
    the     executive          branch's        thought         processes.            But     if     the
    legislature can "determine the content" of a guidance document,
    then    it       is   no    longer     the     executive's             explanation,       or    the
    executive's           guidance       or      advice——it           is     the     legislature's
    31
    Nos.    2019AP614-LV & 2019AP622.dk
    explanation,        guidance,    or     advice.         So,    to      the      extent    the
    legislature commands production of a document, or determines the
    content    of   a    guidance     document,       it    simply       is      no   longer   a
    guidance    document.           The    failure     to     make       that       distinction
    explains his assertions that "determining the content and timing
    of   executive       branch     communications          are      not      the     exclusive
    prerogative     of     the     executive,"        and     that       "nothing      in     the
    constitution suggests the legislature cannot, at least in some
    circumstances, make laws that determine the content of certain
    formal     communications       from     the     government          to    the     public."
    Justice Hagedorn's concurrence/dissent, ¶198.                             His assertions
    are correct with respect to documents the legislature has the
    power to command.            But they are not correct with respect to
    guidance    documents,        because    having     not       been     commanded,        they
    belong entirely to the executive.                Nothing in Justice Hagedorn's
    opinion describes how the power to command the former translates
    into the power to ban the latter unless they comply with the
    legislature's content and publication requirements.
    ¶123 Justice Hagedorn says he does not see why there is any
    difference between:           (a) commanding the creation of a document
    and; (b) preventing the executive branch from creating a certain
    class of documents unless they comply with the legislature's
    requirements.        "For example," he says, "if an executive agency
    must by legislative command create a youth hunting bulletin and
    cite the relevant law, this is a reflection of the executive
    branch's understanding of the law no less than if the executive
    chooses to do the same thing in the absence of such a command."
    32
    Nos.    2019AP614-LV & 2019AP622.dk
    Id., ¶206. In
    the absence of a legislative command, of course,
    the document would belong to the executive department.                              Justice
    Hagedorn's reasoning works only if the executive branch has no
    authority      to     create    or    disseminate       guidance         documents,       and
    depends on legislative permission to do so.                        This, of course, is
    not     true    and    Justice       Hagedorn       does     not     even       attempt   to
    demonstrate otherwise.
    ¶124 But       the      really       instructive        aspect       of      Justice
    Hagedorn's discussion of this bulletin is its revelation that
    his paramount concern is with the amount of the executive's
    authority the legislature pre-empts, rather than with whether
    the legislature may pre-empt it at all.                            He says "Wisconsin
    Stat.    § 227.05       requires      that     a    guidance       document       cite    the
    applicable laws.            But the majority opinion holds that this is
    too much for the legislature to demand of the executive branch
    because it controls executive branch thought."
    Id., ¶210. The
    question is not whether the legislature demanded too much, but
    whether it had the right to demand at all.                     Now, it is obviously
    true    that    the    legislature          could   require        the    Department      of
    Natural Resources to issue a bulletin citing the law applicable
    to the youth hunting season.                It would simply need to pass a law
    mandating such a bulletin and require the citation.                               But that
    authority does not translate into the power to ban executive
    guidance       documents       on    that     subject       unless       they    meet     the
    legislature's content and process requirements.
    ¶125 To these errors Justice Hagedorn adds a metaphysical
    impossibility.         He says the legislature can, and regularly does,
    33
    Nos.    2019AP614-LV & 2019AP622.dk
    co-opt the executive's thought processes that go into creating
    what are now known as guidance documents:                          "The legislature has
    long    regulated . . . the              executive      branch's      understanding       of
    what the law is . . . and how the executive branch intends to
    execute       the        law     going        forward."            Justice      Hagedorn's
    concurrence/dissent, ¶199.                That, of course, is not and cannot
    be true.          The legislature may tell executive branch employees
    what the law is and what to do with it, but regulating the
    employees' understanding of the law or their intentions with
    respect      to    the    execution      of    the    law     is   entirely     beyond    the
    legislature's reach——not as a matter of separation of powers,
    but as an epistemological recognition that one person cannot
    control another's understanding or intentions.19                          He says "[t]he
    clearest      example      [of    this     phenomenon]         may   be   the    mandatory
    creation      of    certain      executive         branch   reports,"     such    as     Wis.
    Stat.       § 15.04(1)(d),        which       he     says   requires      the    executive
    Another epistemological error shows up in Justice
    19
    Hagedorn's    reversal    of   our    observation    that    "[t]he
    constitutional    authority   of    the    executive    encompasses
    determining what the law requires as well as applying it
    (preferably in that order)."      Supra, ¶99.     He says this is
    "wrong on the facts, and therefore, wrong on the law" because
    guidance documents "are the result of, rather than the necessary
    predicate   to,   executing  the    law."      Justice   Hagedorn's
    concurrence/dissent, ¶203.   But this formulation——act first, do
    the intellectual homework later——cannot possibly be correct.
    Creating a guidance document does not reflect the execution of
    any law.     It is simply a written record of the executive
    branch's thoughts about how it will——future tense——execute the
    law, or how others ought to——future tense——conform themselves to
    the law.    In the relationship between guidance documents and
    execution of the law, therefore, guidance documents come first
    as a definitional and epistemological matter.
    34
    Nos.    2019AP614-LV & 2019AP622.dk
    agencies to "include what the agency has done, how it operates,
    and    its        goals        and        objectives           moving         forward."              Justice
    Hagedorn's concurrence/dissent, ¶199.                                  Commanding the executive
    to divulge its understanding of the law and intentions with
    respect to the law is not the same thing as regulating the
    executive's understanding and intentions.                                         So the dispositive
    difference between this and the guidance document provisions is
    really not that hard to spot.                             The legislature may command the
    executive to speak, and even provide content to include in that
    speech.           But   absent            a    command         to     produce          a    document,      the
    document is the executive's own, and the legislature cannot, as
    an epistemological matter, control how the executive understands
    the law he is addressing, or his intentions with respect to that
    law.       Justice Hagedorn could probably provide an endless list of
    examples in which he believes this type of legislative control
    over the executive branch would be a good idea and minimally
    intrusive (and he makes a good start on it (see
    id., ¶207)), but
    that would be to entirely miss the point.                                        With respect to core
    powers, the constitutionality of the legislature's reach into
    the executive branch is not determined by the wisdom of what it
    would do once there, or the relative lack of discomfort to those
    exercising         core        powers.              It    is    determined             by       whether    the
    legislature is exercising that control at all.                                             But for Justice
    Hagedorn,         there    is        no       difference        between:               (a)      a   mandatory
    report describing an agency's understandings and intentions and;
    (b)    a    law    that        attempts         to       regulate          the    executive          branch's
    "understanding            of    what          the    law       is"    and        how       it   "intends    to
    35
    Nos.     2019AP614-LV & 2019AP622.dk
    execute the law."
    Id., ¶199. The
    former is clearly lawful and
    achievable;       the     latter      is    impossible            because       the     executive
    branch's thought processes about the implementation of the law,
    and its guidance and advice, are (by definition) its own.
    ¶126 These        are    some    of    the      granular        reasons         we    believe
    Justice Hagedorn's analysis is incorrect.                             But taking a step
    back to get an overall picture of the legislature's assertion of
    power in §§ 33 and 38 reveals why, as a structural matter, it
    simply cannot work.             To the extent Justice Hagedorn's opinion
    contains    a     constitutional           analysis,         it     rests    solely         on   the
    proposition       that     because         the     legislature            can     command        the
    executive to produce certain documents, it may ban those that do
    not      follow     the        legislature's             content          and         publication
    requirements.       Because his analysis focuses on the legislature's
    power,    without        any   reference         to     what      might     lie       within     the
    executive's       core    authority,        there       is     no    reason       his      analysis
    would not be equally applicable to the judiciary.                               Would Justice
    Hagedorn be as sanguine about §§ 33 and 38 if they applied to
    us?   Would he pick up our "constitutional penalty flag," Justice
    Hagedorn's concurrence/dissent, ¶190, if the legislature told us
    that, prior to publishing our opinions, we must submit them to a
    public    comment        process,     and        then    take       those       comments         into
    consideration before finalizing and publishing our work?                                      Would
    he find it constitutionally unobjectionable if the legislature
    were to mandate that "draft [court opinions] be posted for 21
    days before they are officially issued"?
    Id., ¶211. Would
    he
    quizzically ask why "[p]osting a draft before issuance of some
    36
    Nos.    2019AP614-LV & 2019AP622.dk
    [court opinions] is now denominated a regulation of [judicial]
    branch thought and invades core [judicial] power"?
    Id. Would he
    say that "[t]he legislature is not invading the [judiciary]'s
    ability to read the law or think about the law when it regulates
    how [the courts] officially communicate to the public about what
    the law is and where in the statutes the law may be found"?
    Id., ¶204. Would
    he conclude that the legislature may mandate
    the    content         and    publication        process    of       our    opinions     because
    "[b]y       the    time       [the    court's      opinion]          has    been   reduced      to
    writing, the thinking and analyzing has been done"?
    Id., ¶203. Would
    he be mollified if we could reduce the pre-clearance time
    period to something inconsequential?
    ¶127 One          could       do   this    with     the       entirety      of    Justice
    Hagedorn's analysis.                 And even though the answers are so obvious
    they    make       the       questions     rhetorical,          he    has    no    substantive
    response to any of this.                  But he does reject it on the sweeping
    basis that "the legislature's relationship to the judiciary is
    far different than its relationship to the branch charged with
    the    constitutional            duty     to   execute     the       laws    the   legislature
    passes."
    Id., ¶204 n.5.
              A long time ago the notion that the
    branches of government are co-equal passed into the realm of
    common knowledge.               But Justice Hagedorn's assertion, coming as
    it    does    with       no    explanation,       carries        a    suggestion        that   the
    executive         is    less     than     equal    in    its     relationship           with   the
    legislature.20 Perhaps it is because his guiding principle (as
    Justice Hagedorn apparently misses the import of these
    20
    illustrations. He says:
    37
    Nos.      2019AP614-LV & 2019AP622.dk
    far as he says in his opinion, at least) is simply that, so long
    as "the legislature is carrying out its function of determining
    what    the   law     should       be     by    passing        laws   pursuant     to    its
    constitutional authority," there are no structural limitations
    on the scope of that law.
    Id., ¶198. He
    certainly provides no
    analysis of the legislature's limits, nor does he even attempt
    to   describe     what     might     be    included       in    the   executive's       core
    powers. And yet without doing any of this work, he says "[our]
    analysis falls far short of the mark,"
    id., ¶201, even
    though
    the constitutional principles informing our analysis are well-
    documented      and       fundamental          to   the        separation    of     powers
    established under our constitution more than 170 years ago.
    *
    ¶128 And     now    a   few      closing     words        about   Chief     Justice
    Roggensack's partial concurrence and partial dissent.                             She says
    our analysis is flawed because it does not recognize that the
    legislature has plenary authority over administrative agencies,
    and that they may do nothing without legislative permission.
    Moreover,   the  majority's   criticisms  ring   hollow
    because the majority says the legislature can pass
    laws that do the very things it cites; the legislature
    just has to enact laws regarding specific documents
    (create a youth hunting bulletin, for example). So the
    majority's criticisms apply just as forcefully to its
    own reasoning, which is to say, not much at all.
    Justice Hagedorn's concurrence/dissent, ¶204 n.5.    The whole
    point of putting the "very things" we cite in the judicial
    context is to illustrate why the legislature may not do what
    Justice Hagedorn thinks it may.        So, to be clear, the
    illustrations   identify  things  Justice  Hagedorn  says  the
    legislature may do with respect to the executive, but which we
    say the legislature may not do.
    38
    Nos.    2019AP614-LV & 2019AP622.dk
    This is so, she says, because of the nature of administrative
    agencies within our constitutional structure:                          "[A]dministrative
    agencies have no constitutional core powers because they are not
    a branch of government in our tripartite system."                             Chief Justice
    Roggensack's concurrence/dissent, ¶148.                        She also asserts that
    we   have    previously      said    that    administrative             agencies       can    do
    nothing      but      what     the    legislature              tells     them      to        do:
    "[A]dministrative agencies are creations of the legislature and
    that     they   can    exercise      only        those     powers       granted        by    the
    legislature."
    Id., ¶150 (quoting
    Martinez, 165 Wis. 2d at 697
    ).
    ¶129 But this is only partly true.                       With respect to what
    agencies are, it is certainly true that they are not "a branch
    of government" in the sense of being discrete from the standard
    three.      But as we said just last term, "they are considered part
    of the executive branch."             Koschkee, 
    387 Wis. 2d 552
    , ¶14.                        The
    Chief Justice agrees, or at least she did last year.                               See
    id. ("[A]gencies are
        part     of         the      executive           branch        once
    established[.]").            And the executive, at times, acts through
    administrative agencies to fulfill his constitutional obligation
    that the laws be faithfully executed.                     Util. Air Regulatory Grp.
    v.   E.P.A.,    
    573 U.S. 302
    ,      327    (2014)           ("Under    our     system       of
    government, Congress makes laws and the President, acting at
    times     through      agencies . . . 'faithfully                 execute[s]'           them."
    (quoted     source    omitted;       alterations         in    original));        see       
    also supra
    , ¶97.
    ¶130 With       respect       to     the          granting        of      power        to
    administrative agencies, the Chief Justice mistakes the import
    39
    Nos.   2019AP614-LV & 2019AP622.dk
    of our analysis in Martinez.                    There, we said "administrative
    agencies       are   creations     of     the    legislature      and . . . they         can
    exercise        only    those     powers        granted     by    the      legislature."
    Martinez, 
    165 Wis. 2d 20
    at 697.                    From this the Chief Justice
    concludes that because agencies are created by the legislature
    they     are    subject     to    its     plenary        control.         Chief    Justice
    Roggensack's           concurrence/dissent,          ¶147.               That,    however,
    overlooks the fact that agencies exercise both executive and
    legislative powers.            Our observations in Martinez related to the
    legislature's ability to govern the rule-making authority——that
    is,     the     legislative       power——it        delegates        to     administrative
    agencies.        So our statements on the legislature's ability to
    limit     the    legislative       authority        the     agencies       exercise      say
    nothing about its ability to limit the agencies' exercise of
    executive       authority.        Nor     does     the    Chief     Justice       find   any
    authority for the proposition that an agency's exercise of that
    executive       authority        arises     from     or     is    dependent        on    the
    legislature.           The legislature undeniably has plenary authority
    to govern administrative agencies' exercise of their delegated
    rule-making power because the legislature could simply choose to
    revoke    it     altogether.         
    Martinez, 165 Wis. 2d at 698
    .     It
    naturally       follows    that    if     the    legislature      may      eliminate     the
    power it conferred, it may also condition the exercise of that
    power.        Koschkee, 
    387 Wis. 2d 552
    , ¶20.                    But the legislature
    does    not     confer    on     administrative          agencies        the   ability    to
    exercise executive power; that comes by virtue of being part of
    the executive branch.             The Chief Justice cites no authority nor
    40
    Nos.    2019AP614-LV & 2019AP622.dk
    presents    any   argument         suggesting      the     legislature's      authority
    over an agency's exercise of legislative power is necessarily
    (or even potentially) co-extensive with its authority over an
    agency's exercise of executive power.
    ¶131 This        is   a      dangerous      path     the   Chief   Justice     is
    pursuing.       The Wisconsin Constitution provides for a circuit
    court, but does not say how many circuit court judges there
    shall be.     So the existence of any given circuit court judge is
    dependent entirely on the legislature's choice to create the
    position.     The Chief Justice says the power to create includes
    the   ability     to    control       the   exercise       of    authority    in   that
    position, even when the legislature is not the source of the
    authority the employee exercises.                  If that logic is sound, the
    legislature     could       tell    circuit      court   judges    how   to   exercise
    their judicial power on the grounds that it did not have to
    create the circuit court position in the first place and could
    eliminate it.
    ¶132 The Chief Justice also says the executive's authority
    to explain the law, or give guidance or advice about it, is not
    core to the executive:
    While the executive may interpret laws so that he can
    "faithfully execute" them, it does not follow that
    interpretation of the law is a constitutional core
    power of the executive.    Many elected and appointed
    persons interpret the law in order to carry out their
    assigned duties, be they constitutional functions or
    otherwise.
    Chief   Justice        Roggensack's         concurrence/dissent,         ¶137.       In
    support, she quotes Justice Clarence Thomas, who said:
    41
    Nos.   2019AP614-LV & 2019AP622.dk
    [t]he judicial power was understood [at the time of
    the founding of the United States] to include the
    power to resolve ambiguities over time.     Alexander
    Hamilton lauded this power, arguing that '[t]he
    interpretation of the laws is the proper and peculiar
    province of the courts.' It is undoubtedly true that
    the other branches of Government have the authority
    and obligation to interpret the law, but only the
    judicial    interpretation    would    be  considered
    authoritative in a judicial proceeding."
    Id., ¶138 (quoting
        
    Perez, 575 U.S. at 119
    –20    (Thomas,      J.,
    concurring) (some alterations in original; internal citations
    omitted)).        Justice Thomas, of course, was careful to note that
    the judiciary's interpretation of the law is authoritative "in a
    judicial proceeding."              
    Perez, 575 U.S. at 120
    .              He made no claim
    that our interpretation would be authoritative in the executive
    branch's determination of what the law requires.                            As Alexander
    Hamilton said:            "He who is to execute the laws must first judge
    for    himself       of    their    meaning."           See     
    Hamilton, supra
    ,    ¶96
    (emphasis added).
    ¶133 The question here is not whether the executive branch
    alone       may   interpret        the    law.          The     question       is   whether
    interpreting the law within the executive branch is an exercise
    core to the executive and his employees.                        The Chief Justice says
    this is a shared power, but does not indicate how that could
    possibly be.         The general power to interpret the law is "shared"
    in    the    sense    that    each       of    the     branches    must     perform     that
    function while performing their vested responsibilities, but the
    Chief Justice does not explain how the interpretation of the law
    within      the   executive        branch      could    be     shared   with    any   other
    branch.      She simply concludes that "[i]f explaining what the law
    means through guidance documents actually were a constitutional
    42
    Nos.    2019AP614-LV & 2019AP622.dk
    core power of the executive, courts could not strike down such
    an         interpretation."              Chief          Justice      Roggensack's
    concurrence/dissent, ¶154.            But we don't strike down executive
    interpretations of the law.              We strike down the executive's
    application of the law in specific cases.                   A guidance document
    is not an application of the law, it is simply the executive
    branch's understanding of what the law requires.21
    ¶134 Finally, the Chief Justice says that, "[e]ven though
    guidance documents do not have the force of law as rules of
    administrative agencies do, employees of agencies apply them to
    the   public's     interaction    with    the     agency.         Sometimes    those
    interactions result in litigation when a person against whom a
    guidance      document   is   being    enforced    objects     to   enforcement."
    Chief Justice Roggensack's concurrence/dissent, ¶141.                     She also
    cautions that "[g]uidance documents can have a practical effect
    similar to an unpromulgated rule," noting that "historically,
    administrative      agencies    have    relied    on     guidance    documents    to
    circumvent      rulemaking."
    Id., ¶¶142-43. Now
      that     the
    The Chief Justice says we ignored State v. Unnamed
    21
    Defendant, 
    150 Wis. 2d 352
    , 
    441 N.W.2d 696
    (1989), as an example
    of   the    judiciary     properly    invading   the   executive's
    interpretation   of   the   law.      Chief  Justice  Roggensack's
    concurrence/dissent, ¶151.     There, as the Chief Justice notes,
    "an acting district attorney concluded that he could not prove a
    sexual assault occurred beyond a reasonable doubt, and,
    therefore, decided not to commence criminal proceedings."
    Id. (citing Unnamed
    Defendant, 150 Wis. 2d at 356
    ). We ultimately
    approved the circuit court's order authorizing issuance of a
    complaint under Wis. Stat. § 968.02(3).        But this does not
    illustrate what the Chief Justice thinks it does.       We didn't
    countermand the district attorney's interpretation of the law,
    we countermanded his exercise of discretion.
    43
    Nos.   2019AP614-LV & 2019AP622.dk
    legislature      has     specifically       defined    a     guidance      document   as
    something that cannot be a rule, impose any obligations, set no
    standards, or bind anyone, it is no longer even conceptually
    possible for them to be "applied" or "enforced" against a person
    in accordance with the law.                However, should an administrative
    employee treat a guidance document as a source of authority,
    that employee would be making a mistake, not defining the nature
    of    a     guidance     document.         So     although     the    Chief    Justice
    accurately describes how guidance documents were used prior to
    adoption of 2017 Wis. Act 369, they may no longer be lawfully
    used in that manner.             We expect, as befits a co-equal branch of
    government, that executive branch employees will respect that
    change in the law.            But if they should mistakenly use them as
    before, their mistakes are subject to judicial review pursuant
    to §§ 65-71, as we explained above.                 The Chief Justice's concern
    that executive branch employees will misuse guidance documents
    in    the     future     is   not     a    justification        for     allowing      the
    legislature to overstep its constitutional boundaries in order
    to check those transgressions.               Procedural safeguards enacted by
    the   legislature,        even    those    that    respond     to    the   executive's
    historical misuse of guidance documents, must comport with the
    constitution.      Sections 33 and 38 do not.
    VI.    CONCLUSION
    ¶135 We affirm the circuit court's judgment that 2017 Wis.
    Act 369 § 33 (to the extent it addresses guidance documents) and
    § 38 are facially unconstitutional because they intrude on power
    the   Wisconsin        Constitution       vests   in   the    executive      branch   of
    44
    Nos.   2019AP614-LV & 2019AP622.dk
    government.   However, we reverse the circuit court's judgment
    with respect to 2017 Wis. Act 369, §§ 31, 65-71, 104-05.
    45
    No.    2019AP614-LV & 2019AP622.pdr
    ¶136 PATIENCE DRAKE ROGGENSACK, C.J.                            (concurring in part,
    dissenting         in    part).     I    conclude         that        2017    Wis.    Act    369's
    regulation of guidance documents does not invade the executive's
    core powers.             I write to point out the fundamental flaw that
    underlies Justice Kelly's reasoning and on which he bases his
    conclusion         that    "the    creation        and    dissemination          of    guidance
    documents fall within the executive's core authority."                                   Justice
    Kelly's majority op., ¶105.
    ¶137 The executive's constitutional core power is to "take
    care that the laws be faithfully executed."                             Wis. Const. art. V,
    § 4.     Justice Kelly gets to the conclusion he seeks by adding
    interpretation of the law to Article V, § 4's core power of
    execution of the law.               Justice Kelly's majority op., ¶¶105–06.
    While    the       executive       may    interpret             laws     so    that     he    can
    "faithfully             execute"    them,          it         does      not     follow        that
    interpretation of the law is a constitutional core power of the
    executive.         Many elected and appointed persons interpret the law
    in     order       to     carry    out    their          assigned        duties,       be    they
    constitutional functions or otherwise.
    ¶138 In judicial proceedings, interpretation of the law is
    the constitutional core power of the courts.                                 Wis. Const. art.
    VII, § 2; State ex rel. Kalal v. Circuit Court for Dane Cty.,
    
    2004 WI 58
    , ¶44, 
    271 Wis. 2d 633
    , 
    681 N.W.2d 110
    ("It is, of
    course, a solemn obligation of the judiciary to faithfully give
    effect to the laws enacted by the legislature, and to do so
    requires       a   determination         of    statutory          meaning.").          When    an
    executive's         interpretation        of    a       law     has    been    challenged      in
    1
    No.    2019AP614-LV & 2019AP622.pdr
    court, it is the court's interpretation that prevails, not the
    executive's.          State v. Unnamed Defendant, 
    150 Wis. 2d 352
    , 360,
    
    441 N.W.2d 696
    (1989); see also Perez v. Mortg. Bankers Ass'n,
    
    575 U.S. 92
    ,    119–20         (2015)    (Thomas,          J.,    concurring)          ("The
    judicial power was understood [at the time of the founding of
    the   United      States]        to    include       the     power       to     resolve    these
    ambiguities over time.                 Alexander Hamilton lauded this power,
    arguing that '[t]he interpretation of the laws is the proper and
    peculiar province of the courts.'                      It is undoubtedly true that
    the     other    branches        of     Government           have       the    authority       and
    obligation       to     interpret         the       law,     but        only    the    judicial
    interpretation would be considered authoritative in a judicial
    proceeding." (Internal citations omitted.)).
    ¶139 Outside of judicial proceedings, interpreting the law
    is a power that is shared by many governmental actors, e.g.,
    state executive agency employees, state legislative employees,
    county     agency        employees,            court       employees           and     municipal
    employees, to name only a few who must interpret the law in
    order    to     perform      their      functions.               Martinez      v.    DILHR,     
    165 Wis. 2d 687
    , 696, 
    478 N.W.2d 582
    (1992).                           Although the executive
    interprets laws, such interpretation does not convert a shared
    power     into    a     constitutional          core        power       of     the    executive.
    Rather,       outside       of   court    proceedings,             interpreting         the    law
    remains a shared function.                Tetra Tech EC, Inc. v. DOR, 
    2018 WI 75
    ,   ¶140–41,        
    382 Wis. 2d 496
    ,      
    914 N.W.2d 21
        (Ziegler,       J.,
    concurring).
    2
    No.   2019AP614-LV & 2019AP622.pdr
    I.     BACKGROUND
    ¶140 2017 Wis. Act 369 has several provisions that affect
    guidance         documents.            Section        31     generally        defines       guidance
    documents;            § 33      addresses          required          content         of     guidance
    documents;         § 38      regulates          creation      of    guidance     documents          and
    §§ 65-71         set     out     how      litigation         may     proceed    when        guidance
    documents are at issue.1                    Justice Kelly has concerns with only
    §§ 33      and     38.         Justice     Kelly's         majority     op.,    ¶88.         He    has
    concluded          that      the      other      guidance          document    provisions          are
    facially constitutional.
    Id. II. DISCUSSION
    A.      The Remedial Nature of 2017 Wis. Act 369
    ¶141 Guidance            documents         explain       agencies'       interpretations
    of provisions in statutes and administrative agency rules.                                         They
    explain how the agency that created the guidance document likely
    will       apply      the      law,    often      giving       factual        examples       in    the
    guidance document.                 Guidance documents include such things as
    handbooks,         "how      to"      instructions           for    meeting     various       agency
    requirements             and       many       other        suggestions         for        successful
    interactions with the agency.                      Even though guidance documents do
    not have the force of law as rules of administrative agencies
    do, employees of agencies apply them to the public's interaction
    with       the     agency.            Sometimes        those        interactions          result    in
    litigation when a person against whom a guidance document is
    Sections 104–05 address
    1                                               the    initial     applicability            and
    effective date of § 33.
    3
    No.    2019AP614-LV & 2019AP622.pdr
    being enforced objects to enforcement.                     Newcap, Inc. v. DHS,
    
    2018 WI App 40
    , ¶3, 
    383 Wis. 2d 515
    , 
    916 N.W.2d 173
    .
    ¶142 Guidance documents can have a practical effect similar
    to      an   unpromulgated         rule.            To      explain,           "[a]gency
    guidance . . . can have similar effect to an enforcement action
    or   regulation——imposing      norms       on     regulated     entities        or    the
    beneficiaries of regulatory programs.                   Moreover, the individual
    interests    subject   to    agency    guidance         frequently       are    no   less
    important than those interests regulated through administrative
    enforcement     actions      and      regulations."             Jessica         Mantel,
    Procedural    Safeguards       for     Agency       Guidance:        A     Source      of
    Legitimacy for the Administrative State, 61 Admin. L. Rev. 343,
    345 (2009).
    ¶143 Given    the     rule-like      practical       effects        of   guidance
    documents,    we    should    not     be       surprised    that,        historically,
    administrative     agencies    have     relied      on    guidance       documents     to
    circumvent rulemaking.         Andrew C. Cook, Extraordinary Session
    Laws:    New Limits on Governor and Attorney General, 92 Wis. Law.
    26, 27 (2019) (discussing the problem created when "guidance
    documents contain new interpretations that operate essentially
    as administrative rules but without going through the proper
    rulemaking process"); Written Testimony of Senator David Craig
    on Senate Bill 745 Before the Senate Committee on Labor and
    Regulatory         Reform      (Feb. 6, 2018),                https://docs.legis.
    wisconsin.gov/misc/lc/hearing_testimony_and_materials/2017/sb745
    /sb0745_2018_02_06.pdf (explaining that guidance documents have
    been used "to avoid the deliberative process of rulemaking")
    4
    No.   2019AP614-LV & 2019AP622.pdr
    (last visited June 25, 2020); Floor Speech by Andre Jacque Floor
    Session        on    2017        Assembly    Bill       1072     (2017      Wis.    Act   369),   at
    3:25,        https://wiseye.org/2018/12/05/assembly-floor-session-part-
    2-8/ (last visited June 25, 2020) (explaining the assemblyman
    "frequently              heard    from    constituents,              small    businesses     [and]
    local government" about "how guidance documents have been abused
    as   a       vehicle       to    actually    change       the        law"    and    how   they    are
    sometimes "hidden from sight or dusted off after decades").
    ¶144 Wisconsin's                troublesome            history        with       guidance
    documents           is    not     unique.2     The        D.C.       Circuit       summarized     the
    problem well in 2000:
    The phenomenon we see in this case is familiar.
    Congress passes a broadly worded statute. The agency
    follows with regulations containing broad language,
    open-ended phrases, ambiguous standards and the like.
    Then as years pass, the agency issues circulars or
    guidance   or   memoranda,  explaining,   interpreting,
    defining and often expanding the commands in the
    regulations.   One guidance document may yield another
    and then another and so on.        Several words in a
    regulation may spawn hundreds of pages of text as the
    agency offers more and more detail regarding what its
    regulations demand of regulated entities.       Law is
    made, without notice and comment, without public
    participation, and without publication in the Federal
    Register of the Code of Federal Regulations.
    Appalachian Power Co. v. E.P.A., 
    208 F.3d 1015
    , 1020 (D.C. Cir.
    2000) (emphasis added).
    Hale Melnick, Comment, Guidance Documents and Rules:
    2
    Increasing Executive Accountability in the Regulatory World, 44
    B.C. Environmental Affairs L. Rev. 357, 364 (2017) ("By issuing
    guidance documents, agencies circumvent the costly and time-
    consuming——but    democratically   important——notice-and-comment
    requirements.").
    5
    No.    2019AP614-LV & 2019AP622.pdr
    ¶145 Justice Kelly ignores the remedial nature of 2017 Wis.
    Act    369.     He     argues       that    "should     an    administrative            agency
    employee treat a guidance document as a source of authority,
    that employee would be making a mistake, not defining the nature
    of a guidance document. . . .                 [T]heir mistakes are subject to
    judicial review."          Justice Kelly's majority op., ¶134.
    ¶146 I cannot ignore the history that led to the enactment
    of     2017   Wis.     Act    369        simply     because       judicial          review    is
    available.      Recently, we explained that judicial review is, by
    itself, an inadequate protection against the deprivation of the
    people's liberty.            Wis. Legislature v. Palm, 
    2020 WI 42
    , ¶¶32–
    35,    
    391 Wis. 2d 497
    ,     
    942 N.W.2d 900
    .         As        we    explained,
    "[j]udicial     review       does     not    prevent        oppressive         conduct       from
    initially     occurring."
    Id., ¶35. The
       legislature          has     a
    legitimate       interest           in      providing         effective             procedural
    safeguards.
    Id. Justice Kelly
       should       not    be    so    quick     to
    dismiss the history that led to the enactment of 2017 Wis. Act
    369.
    B.    Agencies
    ¶147 While agencies are part of the executive branch once
    established, it is the legislature that creates agencies and
    grants them "power as is necessary to carry into effect the
    general legislative purpose."                 Koschkee v. Taylor, 
    2019 WI 76
    ,
    ¶12, 
    387 Wis. 2d 552
    , 
    929 N.W.2d 600
    .                       An administrative agency
    has    only    those       powers     as    are     expressly       conferred          by     the
    statutory provisions under which it operates.3                                State ex rel.
    2011 Wis. Act 21 affected the authority of agencies by
    3
    imposing   an   "explicit authority  requirement"  on  agency
    6
    No.    2019AP614-LV & 2019AP622.pdr
    Castaneda     v.     Welch,   
    2007 WI 103
    ,       ¶26,    
    303 Wis. 2d 570
    ,   
    735 N.W.2d 131
    (quoting Brown Cty. v. DHSS, 
    103 Wis. 2d 37
    , 43, 
    307 N.W.2d 247
    (1981)); see also Schmidt v. Dep't of Res. Dev., 
    39 Wis. 2d 46
    , 56, 
    158 N.W.2d 306
    (1968) ("The very existence of
    the administrative agency or director is dependent upon the will
    of    the   legislature;      its    or    his    powers,       duties       and   scope      of
    authority are fixed and circumscribed by the legislature and
    subject to legislative change."); Gray Well Drilling Co. v. Wis.
    State Bd. of Health, 
    263 Wis. 417
    , 419, 
    58 N.W.2d 64
    (1953)
    (explaining         that   administrative        agencies       are    not    required         to
    follow      rules    governing      judicial      proceedings         unless       a    statute
    requires       otherwise         because         "rules         of      procedure             for
    administrative bodies" are a "function" that "belongs to the
    legislature"); State ex rel. Wis. Inspector Bureau v. Whitman,
    
    196 Wis. 472
    ,       508,   
    220 N.W. 929
       (1928)        ("[A]dministrative
    agencies      are      the    creatures      of        the     legislature             and    are
    responsible to it.            Consequently the legislature may withdraw
    authority.    See generally Kirsten Koschnick, Comment, Making
    "Explicit   Authority"  Explicit: Deciphering   Wis.   Act  21's
    Prescriptions for Agency Rulemaking Authority, 
    2019 Wis. L
    . Rev.
    993.   This requirement is set out in Wis. Stat. § 227.10(2m),
    which provides:
    No agency may implement or enforce any standard,
    requirement, or threshold, . . . unless that standard,
    requirement, or threshold is explicitly required or
    explicitly permitted by statute or by a rule that has
    been promulgated in accordance with this subchapter[.]
    Section 227.10(2m) clearly limits agency authority from what
    courts had held in the past. Wis. Legislature v. Palm, 
    2020 WI 42
    , ¶52, 
    391 Wis. 2d 497
    , 
    942 N.W.2d 900
    .    Justice Kelly never
    mentions the explicit authority requirement of § 227.10(2m).
    7
    No.   2019AP614-LV & 2019AP622.pdr
    powers which have been granted, prescribe the procedure through
    which granted powers are to be exercised, and if necessary wipe
    out the agency entirely.").
    ¶148 I agree that separation of powers is a doctrine that
    is   firmly       established         under     Wisconsin        law.        
    Martinez, 165 Wis. 2d at 696
    n.8 (explaining that the Wisconsin Constitution
    "art. IV., sec. 1 vests legislative power in the senate and
    assembly;      art.      V.,     sec.    1    vest[s]       executive        power   in   the
    governor and lieutenant governor; and art. VII, sec. 2 vest[s]
    judicial power in a unified court system"); see also Unnamed
    
    Defendant, 150 Wis. 2d at 360
    .                  However, administrative agencies
    have no constitutional core powers because they are not a branch
    of government in our tripartite system.                           
    Martinez, 165 Wis. 2d at 696
    n.8.          Stated otherwise, the core power of the executive
    resides with the governor and lieutenant governor; it does not
    reside with administrative agencies, which are merely "creatures
    of statute."         Lake Beulah Mgmt. Dist. v. DNR, 
    2011 WI 54
    , ¶23,
    
    335 Wis. 2d 47
    , 
    799 N.W.2d 73
    ; see also Koschkee, 
    387 Wis. 2d 552
    ,   ¶47     (R.      Grassl    Bradley,          J.,    concurring)       ("Article     V,
    Section       1      'vest[s]'          the         'executive        power . . . in        a
    governor' . . . .          These constitutional 'grants are exclusive,'
    which has been understood to mean 'only the vested recipient of
    that   power      can    perform        it.'"       (alterations        in   the   original)
    (internal citations omitted)).
    ¶149 Justice Kelly reasons that creating guidance documents
    is a core power of the executive because the power to create
    guidance     documents         does     not   come     from     the     legislature:      "[A]
    8
    No.   2019AP614-LV & 2019AP622.pdr
    guidance document is something created by the executive branch
    employees through the exercise of executive authority native to
    that branch of government."            Justice Kelly's majority op., ¶105.
    Justice Kelly asserts that "unlike a rule, the executive branch
    needs no borrowed authority from the legislature to create a
    guidance document."         Justice Kelly's majority op., ¶100.                  He
    asserts, "This creative power is necessarily inherent to the
    executive because no other branch of government has even the
    theoretical ability to know the executive's mind with respect to
    the law he is to execute."         Justice Kelly's majority op., ¶102.
    ¶150 He cites no authority for this change in the law,
    which    has   repeatedly   held    that     "administrative         agencies    are
    creations of the legislature and that they can exercise only
    those powers granted by the legislature."                 
    Martinez, 165 Wis. 2d at 697
    ; see also Castaneda, 
    303 Wis. 2d 570
    , ¶26; 
    Brown, 103 Wis. 2d at 43
    .       As creatures of statute, the legislature may
    "prescribe     the   procedure     through     which       granted    powers    [of
    administrative agencies] are to be exercised."                       
    Whitman, 196 Wis. at 508
    .
    ¶151 Justice    Kelly     also    ignores     our    decision    in    Unnamed
    Defendant where an acting district attorney concluded that he
    could not prove a sexual assault occurred beyond a reasonable
    doubt,    and,    therefore,     decided      not     to    commence        criminal
    proceedings.     Unnamed 
    Defendant, 150 Wis. 2d at 356
    .                     Notably,
    his   conclusion     occurred    outside     the     context    of    a     judicial
    proceeding, as most charging decisions do.                   Nevertheless, the
    circuit court ordered the district attorney or his designee to
    9
    No.    2019AP614-LV & 2019AP622.pdr
    file charges pursuant to Wis. Stat. § 968.02(3), which states a
    judge "may permit the filing of a complaint" in a John Doe
    proceeding      "if    the    judge      finds      there    is     probable      cause   to
    believe that the person to be charged has committed an offense
    after conducting a hearing."
    Id. at 357.
             We upheld the circuit
    court's decision.
    Id. at 367.
                In so doing, we authorized
    circuit      courts          to       disregard           prosecutors'            statutory
    interpretations        in    light      of   the     "John    Doe    Law,"     Wis.   Stat.
    §§ 968.02(3) and 968.26.
    Id. at 366.
             The interpretation of the
    acting    district      attorney        would       not   have      been    overruled     if
    interpretation of the law were a core power of the executive.
    ¶152 Justice Kelly ultimately concludes that the answer to
    whether   the    legislature         can     legislate       in    regard    to   guidance
    documents "depends on whether the creation of guidance documents
    represents      an    exercise     of    the       executive's      core    function,     or
    merely a power shared with the legislature."                           Justice Kelly's
    majority op., ¶103.          To address this concern, he creates his own
    definition core powers:            "A branch's core powers are those that
    define its essential attributes."                   Justice Kelly's majority op.,
    ¶104.     He acknowledges that if guidance documents fall within
    shared powers, the legislature may have the "right to govern
    their content and dissemination."                   Justice Kelly's majority op.,
    ¶104.     However, he does not give a moment's pause to shared
    powers, but rather, he opines that all of his legal contentions
    are "true because guidance documents merely explain statutes and
    rules, or provide guidance or advice about how the executive is
    likely to apply them."            Justice Kelly's majority op., ¶106.
    10
    No.    2019AP614-LV & 2019AP622.pdr
    ¶153 To explain shared powers, and their relationship to
    core    powers,      "it    is     neither      possible        nor       practicable     to
    categorize all governmental action as exclusively legislative,
    executive or judicial."               
    Martinez, 165 Wis. 2d at 696
    (quoting
    State   v.    Washington,        
    83 Wis. 2d 808
    ,     825,     
    266 N.W.2d 597
    (1978)).      Therefore, separation of powers is transgressed only
    when one branch "interferes with a constitutionally guaranteed
    'exclusive        zone'    of    authority          vested     in     another      branch,"
    
    Martinez, 165 Wis. 2d at 697
    , i.e., a constitutional core power,
    or when a shared power is unduly burdened.                           Flynn v. DOA, 
    216 Wis. 2d 521
    , 556, 
    576 N.W.2d 245
    (1998).
    ¶154 If     explaining      what      the     law     means    through      guidance
    documents     actually      were      a    constitutional        core      power    of   the
    executive, courts could not strike down such an interpretation.
    Yet courts have done so when an agency oversteps the authority
    granted      by    the     legislature        in     reliance        on    the     agency's
    interpretation of what the law requires.                         Newcap, 
    383 Wis. 2d 515
    , ¶3; Papa v. DHS, 2020 WI __, ¶2, __ Wis. 2d __, __ N.W.2d
    __.
    ¶155 Additionally, the legislature often interprets its own
    laws.     In the case before us, members of the legislature would
    not have standing if the legislature had no power to interpret
    its laws.         Yet Justice Kelly takes no issue with these members
    arguing before our court.
    ¶156 Justice Kelly also supports his legal conclusion with
    quotes from portions of Tetra Tech.                  For example, he says:
    The executive must certainly interpret and apply the
    law; it would be impossible to perform his duties if
    11
    No.   2019AP614-LV & 2019AP622.pdr
    he did not. . . . Our constitution not only does not
    forbid this, it requires it.
    Justice     Kelly's         majority    op.,       ¶96    (citing          Tetra        Tech,    
    382 Wis. 2d 496
    , ¶53 (lead)).               However, this paragraph of Tetra Tech
    was joined by only one justice in addition to Justice Kelly who
    wrote the provision; it does not represent the opinion of the
    court.
    Id., ¶3 n.4.
             Indeed,       Justice          Ziegler       wrote       a
    concurrence, which I joined, in part to respond to this portion
    of the lead opinion in Tetra Tech.
    Id., ¶141 &
    n.10 (Ziegler,
    J., concurring).            She explained that "the power to interpret and
    apply    the    law"    is    a    shared     power      outside          the    context        of    a
    judicial proceeding.
    Id., ¶¶140–41. ¶157
    That an executive would interpret a law as he executes
    it   does       not    convert       interpretation             of        the     law     into       a
    constitutional         core    power.        Interpretation               of    the     law     is    a
    shared    power       that    many     governmental            actors          employ    as     they
    interpret what they must do in order to be in compliance with
    the law.       See e.g., State v. Horn, 
    226 Wis. 2d 637
    , 644-45, 
    594 N.W.2d 772
    (1999) (discussing the shared power of administrative
    revocation      of     probation       and   the    court's          power       to   sentence);
    State v. Dums, 
    149 Wis. 2d 314
    , 323-24, 
    440 N.W.2d 814
    (1989)
    (discussing the shared power to amend or dismiss a filed charge
    under the separation of powers doctrine).
    ¶158 A         final    note    worth     mentioning            is    the     standard          of
    review.     Justice Kelly and I agree on the standard of review,
    although       we   apply     it    quite    differently.                 He    explains      that,
    because this lawsuit is a facial challenge, we must uphold the
    12
    No.   2019AP614-LV & 2019AP622.pdr
    statutes unless they cannot be enforced under any circumstances.
    Justice Kelly's majority op., ¶92.                     He later states:
    [The legislature] may not control [the Governor's]
    knowledge or intentions about those laws. Nor may it
    mute or modulate the communication of his knowledge or
    intentions to the public. Because there are no set of
    facts pursuant to which §§ 33 (to the extent it
    applies to guidance documents) and 38 would not
    impermissibly interfere with the executive's exercise
    of his core constitutional power, they are in that
    respect facially unconstitutional.
    Justice Kelly's majority op., ¶108.
    ¶159 There are a few issues with this application of the
    standard of review.             First, I would not conflate administrative
    agencies with the governor as Justice Kelly does.                             The governor
    is     a     constitutional       officer;           administrative         agencies      are
    "creatures of statute."               Lake Beulah, 
    335 Wis. 2d 47
    , ¶23.
    ¶160 Second,       even       if    I    were       to    assume,   arguendo,     that
    administrative agencies were equivalent to the governor, 2017
    Wis.       Act   369,   §§ 33    &    38       do    not     "control"     the   governor's
    "knowledge or intentions."                 Justice Kelly's majority op., ¶108.
    Instead, they require administrative agencies to follow certain
    procedures.         For example, agencies must "provide for a period
    for public comment on a proposed guidance document."                             Wis. Stat.
    § 227.112(1)(b).         Public comments might inform the "knowledge or
    intentions" of the administrative agency; however, they would
    not control it.          Justice Kelly rhetorically questions whether I
    would feel similarly if the legislature required the Wisconsin
    Supreme Court to submit its opinions to a public comment period
    before       publication.            No,       I     would       not,   because     we    are
    constitutional officers; administrative agencies are not.
    13
    No.   2019AP614-LV & 2019AP622.pdr
    ¶161 Third, and relatedly, this case is not an as-applied
    challenge.      In     some   situations,    §§ 33    &   38   might   contain
    procedural hurdles on the issuance of guidance documents that
    are   so   difficult    to    meet   that   they    are   unduly   burdensome.
    However, we do not have an as-applied challenge before us.
    ¶162 Justice     Kelly's   conclusion    is    in   error    because   his
    reasoning relies on a fundamentally inaccurate legal premise.
    Interpreting the law is a shared power, not a constitutional
    core power of the executive.           As a shared power, it cannot be
    unduly burdened.       
    Flynn, 216 Wis. 2d at 556
    .         However, before us
    is a facial challenge, and the plaintiffs have not established
    that 2017 Wis. Act 369, §§ 33 & 38 are unduly burdensome in all
    circumstances.       Accordingly, I respectfully concur with respect
    to the majority opinion on all issues except guidance documents,
    and I respectfully dissent from the majority opinion regarding
    guidance documents.
    14
    No.   2019AP614-LV & 2019AP622.rfd
    ¶163 REBECCA        FRANK     DALLET,     J.     (concurring      in    part,
    dissenting      in     part).     Just   days    before    the    swearing-in    of
    Wisconsin's      newly    elected   governor     and     attorney    general,   the
    legislature passed, and the outgoing governor signed into law,
    2017 Wis. Act 369 and 2017 Wis. Act 370.                        The Plaintiffs, a
    group     of   labor    organizations    and    individual       taxpayers,   filed
    this lawsuit alleging several provisions of these Acts violate
    the       separation      of    powers       enshrined     in     the   Wisconsin
    Constitution.
    ¶164 I agree with the scope of the majority opinions1 and
    join several parts.2            I write separately, however, because the
    1I agree the following provisions were not properly before
    the court on this interlocutory appeal: 2017 Wis. Act 369, § 87
    (Wis. Stat. § 238.399(3)(am)), 2017 Wis. Act 370, § 10 (Wis.
    Stat. § 20.940), and 2017 Wis. Act 370, § 11 (Wis. Stat.
    § 49.175(2)(a)). See Justice Hagedorn's majority op., ¶24 n.9.
    2Specifically, I join Justice Kelly's majority opinion with
    respect to 2017 Wis. Act 369, § 31 (Wis. Stat. § 227.01 (3m)),
    § 33 (Wis. Stat. § 227.05), § 38 (Wis. Stat. § 227.112), §§ 65-
    71 (amending Wis. Stat. § 227.40), and §§ 104-05 in full, and
    Justice Hagedorn's majority opinion on the following parts:
        Part II.E.1., insofar as it reverses the circuit court
    with respect to 2017 Wis. Act 369, § 5 (Wis. Stat.
    § 13.365) and § 97 (Wis. Stat. § 803.09(2m));
        Part II.E.2., "Capitol Security" provision, 2017 Wis. Act
    369, § 16 (Wis. Stat. § 16.84(2m));
        Part II.E.3, "Multiple Suspensions of Administrative
    Rules" provision, 2017 Wis. Act 369, § 64 (Wis. Stat.
    § 227.26(2)(im)), in light of Martinez v. DILHR, 
    165 Wis. 2d 687
    , 
    478 N.W.2d 582
    (1992); and
        Part II.E.4., "Agency Deference Provision," 2017 Wis. Act
    369, § 35 (Wis. Stat. § 227.10(2g)), in light of Tetra
    Tech EC, Inc. v. DOR, 
    2018 WI 75
    , 
    382 Wis. 2d 496
    , 
    914 N.W.2d 21
    .
    1
    No.    2019AP614-LV & 2019AP622.rfd
    complaint plausibly suggests that the sweep of the "Litigation
    Control"   provisions,        2017    Wis.           Act     369,     § 26     (Wis.    Stat.
    § 165.08(1)) and § 30 (Wis. Stat.                     § 165.25(6)(a)1.),              violates
    our   constitutional      separation            of     powers        because     it     unduly
    burdens    and   substantially         interferes             with     executive       power.
    Accordingly, I respectfully concur in part and dissent in part.
    I
    ¶165 This case was snatched from the circuit court in its
    infancy,   on    the    eve    of    the    first          trial     on    the   challenged
    provisions.3     Consequently, the facts have not been developed and
    the   parties    have    not    had        the       opportunity          to   amend     their
    pleadings to conform to those facts.4                      The impact of the majority
    opinions   is    therefore      limited,         as     is    our     review.          Several
    undeveloped claims are remanded right back to the circuit court
    to proceed in the ordinary course of litigation.                                 Even those
    claims dismissed by the majority will likely find their way back
    Because I join the majority opinions with respect to 2017
    Wis. Act 369, § 31 (Wis. Stat. § 227.01(3m)), § 64 (Wis. Stat.
    § 227.26(2)(im)), §§ 65-71 (amending Wis. Stat. § 227.40), and
    §§ 104-05, I would similarly vacate the circuit court's
    temporary injunction with respect to these sections.
    3This court assumed jurisdiction over the Legislative
    Defendants' interlocutory appeal on June 11, 2019, staying all
    circuit court proceedings the day before the first part of the
    bifurcated trial was set to commence.
    4A litigant's ability to amend the pleadings pursuant to
    Wis. Stat. § 802.09(1) is "liberally construed . . . so as to
    present the entire controversy providing the amendment does not
    unfairly deprive the opposing party of timely opportunity to
    meet the issue created by the amendment."     Wiegel v. Sentry
    Indem. Co., 
    94 Wis. 2d 172
    , 184, 
    287 N.W.2d 796
    (1980) (quoted
    source omitted).
    2
    No.    2019AP614-LV & 2019AP622.rfd
    to us after newly filed lawsuits result in the very development
    that       this    court's     assumption       of    jurisdiction         snuffed.       This
    court's impatience did not allow the challenges to 2017 Wis. Act
    369 and 2017 Wis. Act 370 to percolate and will prove to be an
    unfortunate waste of judicial resources.5
    ¶166 We have before us a limited review of the circuit
    court's denial of a motion to dismiss.                        "A motion to dismiss for
    failure to state a claim tests the legal sufficiency of the
    complaint."            Voters with Facts v. City of Eau Claire, 
    2018 WI 63
    ,    ¶27,        
    382 Wis. 2d
    1,      
    913 N.W.2d 131
           (quoting    Data     Key
    Partners          v.     Permira     Advisers       LLC,      
    2014 WI 86
    ,   ¶19,     
    356 Wis. 2d 665
    ,            
    849 N.W.2d 693
    ).           The      legal    sufficiency        of   a
    complaint,         in     turn,    "depends     on    [the]      substantive       law    that
    underlies the claim made because it is the substantive law that
    drives what facts must be pled."
    Id. (alteration in
    original)
    (quoting Data Key Partners, 
    356 Wis. 2d 665
    , ¶31).
    ¶167 Here, the underlying substantive law is this court's
    jurisprudence on the separation of powers under the Wisconsin
    Constitution,            as   well   as   the       United     States      Supreme    Court's
    jurisprudence            regarding     the    separation        of     powers     under    the
    See, e.g., Richard A. Posner, The Federal Courts: Crisis
    5
    and Reform 163 (1985) ("[A] difficult question is more likely to
    be answered correctly if it is allowed to engage the attention
    of different sets of judges deciding factually different cases
    than if it is answered finally by the first panel to consider
    it."); John Paul Stevens, Some Thoughts on Judicial Restraint,
    66 Judicature 177, 183 (1982) ("The doctrine of judicial
    restraint teaches us that patience in the judicial resolution of
    conflicts may sometimes produce the most desirable result.").
    3
    No.   2019AP614-LV & 2019AP622.rfd
    United     States     Constitution.6              The    Wisconsin    Constitution
    establishes a tripartite state government whereby it vests the
    senate and assembly with the legislative power, Wis. Const. art.
    IV, § 1; the governor with the executive power,
    id., art. V,
    § 1; and the unified court system with the judicial power,
    id., art. VII,
    § 2.        "[N]o branch [is] subordinate to the other, no
    branch [may] arrogate to itself control over the other except as
    is provided by the constitution, and no branch [may] exercise
    the power committed by the constitution to another."                       Koschkee
    v. Taylor, 
    2019 WI 76
    , ¶10, 
    387 Wis. 2d 552
    , 
    929 N.W.2d 600
    (quoting State ex rel. Friedrich v. Cir. Ct. for Dane Cty., 
    192 Wis. 2d 1
    , 13, 
    531 N.W.2d 32
    (1995) (per curiam)).
    ¶168 Despite        this     formal        proscriptive         language,    our
    separation-of-powers doctrine at times embraces a functionalist
    approach:       "the doctrine envisions a system of separate branches
    sharing many powers while jealously guarding certain others, a
    system     of    'separateness    but        interdependence,        autonomy    but
    reciprocity.'"       
    Friedrich, 192 Wis. 2d at 14
    (quoting Youngstown
    Sheet & Tube Co. v. Sawyer, 
    343 U.S. 579
    , 635 (1952)).                           Our
    doctrine        distinguishes    core        powers       that      the   Wisconsin
    Constitution      exclusively    vests       in    one   of   the    branches   from
    shared powers that "lie at the intersections of these exclusive
    core constitutional powers."             State v. Horn, 
    226 Wis. 2d 637
    ,
    6  The    "principles   underlying    the   United    States
    Constitution . . . 'inform our understanding of the separation
    of powers under the Wisconsin Constitution.'"    League of Women
    Voters of Wisconsin v. Evers, 
    2019 WI 75
    , ¶31, 
    387 Wis. 2d 511
    ,
    
    929 N.W.2d 209
    (quoting Gabler v. Crime Victims Rights Bd., 
    2017 WI 67
    , ¶11, 
    376 Wis. 2d 147
    , 
    897 N.W.2d 384
    ).
    4
    No.   2019AP614-LV & 2019AP622.rfd
    643, 
    594 N.W.2d 772
    (1999).     The core powers are "jealously
    guard[ed]," while branches with intersecting powers may exercise
    their shared authority so long as they do not "unduly burden or
    substantially interfere with another branch."
    Id. at 644
    .
    ¶169 This    court's    functionalist     approach,    however,    is
    vulnerable to one branch's accretion of another's power in their
    shared zone of authority.7       That vulnerability threatens our
    constitutional structure8 and requires this court to vigorously
    apply the limiting principle in our shared-power analysis:            the
    exercise of shared power cannot unduly burden or substantially
    interfere with a coequal branch's function.           Mindful of this
    limiting principle, I turn to the Litigation Control provisions.
    II
    ¶170 The    complaint   alleges   that    the   Litigation   Control
    provisions, 2017 Wis. Act 369, § 26 (Wis. Stat. § 165.08(1)) and
    § 30 (Wis. Stat. § 165.25(6)(a)1.), violate the separation-of-
    7  Justice Brennan, a prolific modern advocate of living
    constitutionalism and constitutional functionalism generally,
    adhered to a formal separation-of-powers philosophy because of
    this vulnerability.   See Commodity Futures Trading Comm'n v.
    Schor, 
    478 U.S. 833
    , 859–62 (1986) (Brennan, J., dissenting)
    (reasoning that the Court's functional approach risked the
    "incremental erosion" of the separation between the branches
    "central to our constitutional scheme"); see also N. Pipeline
    Constr. Co. v. Marathon Pipe Line Co., 
    458 U.S. 50
    (1982)
    (Brennan, J.).
    8  "While individual encroachments on the constitutional
    structure may appear harmless, at some point the structure will
    fail, and '[w]hen structure fails, liberty is always in peril.'"
    Ara Lovitt, Fight for Your Right to Litigate: Qui Tam, Article
    II, and the President, 49 Stan. L. Rev. 853, 866 (1997)
    (footnotes omitted) (quoting Public Citizen v. United States
    Dep't of Justice, 
    491 U.S. 440
    , 468 (1989) (Kennedy, J.,
    concurring)).
    5
    No.    2019AP614-LV & 2019AP622.rfd
    powers    doctrine         because      they   effectively        eliminate        executive
    power    to    settle       civil      litigation      by    enacting       an    overriding
    legislative veto.            Prior to Act 369, executive branch officials
    could     direct       a     civil        prosecution        to   be       compromised        or
    discontinued.              Act   369      amended    § 165.08(1)           to    remove      the
    executive branch's unilateral control by barring the attorney
    general from compromising or discontinuing a civil prosecution
    without prior "approval of a[] [legislative] intervenor" or, if
    there is no legislative intervenor, "only if the joint committee
    on    finance        approves       the     proposed      plan    [to       compromise        or
    discontinue]"         the    prosecution.           (Emphasis        added.)         Further,
    pursuant      to     § 165.08(1)        the    attorney      general       can     no   longer
    concede       "the     unconstitutionality           or      other     invalidity       of    a
    statute" or that "a statute violates or is preempted by federal
    law" without first receiving the approval of another legislative
    committee, the joint committee on legislative organization.
    ¶171 Similarly,            Wis.      Stat.    § 165.25(6)(a)1.             removes     the
    executive branch's unilateral control by mandating legislative
    approval in cases where the attorney general defends the State
    of Wisconsin in a civil action for injunctive relief or where
    there    is    a     proposed    consent       decree.        Section       165.25(6)(a)1.
    dictates that the attorney general "may not compromise or settle
    the     action        without        the      approval       of      a[]        [legislative]
    intervenor . . . or, if there is no intervenor, without first
    submitting a proposed plan to the joint committee on finance."
    (Emphasis added.)            The attorney general may now only settle a
    case in defense of the State of Wisconsin with the committee's
    6
    No.   2019AP614-LV & 2019AP622.rfd
    approval, if the committee chooses to meet.                    And if the plan
    "concedes      the     unconstitutionality   or      other    invalidity   of    a
    statute, facially or as applied, or concedes a statute violates
    or is preempted by federal law," section 165.25(6)(a)1. adds yet
    another layer of legislative control:                  "the approval of the
    joint committee on legislative organization" before the attorney
    general may even submit the plan.            Collectively, the Litigation
    Control provisions make legislative officials the final arbiters
    over the attorney general's discretionary authority to resolve
    state-related litigation.
    ¶172 The question presented to this court is whether the
    Plaintiffs have sufficiently stated a claim that the sweep of
    the       Litigation     Control    provisions       "unduly     burden[s]      or
    substantially interfere[s] with" the executive branch's power to
    execute the law.         
    Horn, 226 Wis. 2d at 645
    .           It is indisputable
    that litigation is a tool of the executive branch for executing
    the law, see Buckley v. Valeo, 
    424 U.S. 1
    , 138 (1976) (per
    curiam),9 and that removal of sufficient executive control over
    litigation can violate the constitution, see Morrison v. Olson,
    
    487 U.S. 654
    , 685-96 (1988).            However, the majority undertakes
    no    substantive       analysis   of   whether      the   Litigation    Control
    provisions'      removal      of   executive      control      over     resolving
    litigation unduly burdens or substantially interferes with the
    9"A lawsuit is the ultimate remedy for a breach of the law,
    and it is to the President . . . that the Constitution entrusts
    the responsibility to 'take Care that the Laws be faithfully
    executed.'"    Buckley v. Valeo, 
    424 U.S. 1
    , 138 (1976) (per
    curiam) (quoting U.S. Const. art. II, § 3).
    7
    No.   2019AP614-LV & 2019AP622.rfd
    executive branch's function.             Instead, the majority mechanically
    applies    a    strict    review    standard       for    facial      challenges    and
    concludes that the Plaintiffs' challenge fails because the court
    can conceive of some unarticulated constitutional application of
    the Litigation Control provisions.
    ¶173 I dissent for two reasons.                    First, the legislature
    does not have a constitutionally-vested "institutional interest
    as a represented party" in civil litigation resolution and the
    power of the purse cannot be understood so broadly as to permit
    substantial       burdens   on     another    branch's         intersecting    power.
    Second, the majority's rigid application of a strict facial-
    challenge standard in this case achieves the exact opposite of
    judicial       modesty.     Application       of    the       overbreadth    doctrine
    better safeguards the separation of powers established by the
    Wisconsin Constitution.
    A
    ¶174 The      majority's       conception          of     the    legislature's
    "institutional       interest       as   a    represented          party,"    Justice
    Hagedorn's majority op., ¶67, is unsupported by the Wisconsin
    Constitution and creates a dangerously expansive ability for the
    legislature to unduly burden and substantially interfere with
    the   other     branches.10        The   Wisconsin       Constitution,       like   the
    10If the legislature had an institutional interest such
    that it could arrogate the executive power to ensure its laws
    were upheld (or at least not conceded) in court, the legislature
    could also rely on this interest to enact the same controls on
    the   judiciary's  authority  to   declare  its   laws  invalid,
    unconstitutional, or preempted by federal law. Such a result is
    constitutionally suspect.
    8
    No.    2019AP614-LV & 2019AP622.rfd
    United States Constitution, does not contemplate an active role
    for the legislature in executing or in supervising the executive
    officers     charged      with    executing      the     laws   it   enacts.11        See
    Schuette v. Van De Hey, 
    205 Wis. 2d 475
    , 480–81, 
    556 N.W.2d 127
    ,
    (Ct.    App.      1996)   ("Legislative         power,    as    distinguished     from
    executive      power,     is   the   authority     to    make   laws,     but   not   to
    enforce them, or appoint the agents charged with the duty of
    such     enforcement."         (quoting    2A    Eugene     McQuillin,      Municipal
    Corporations § 10.06 at 311 (3d ed. 1996))); see also Bowsher v.
    Synar,      
    478 U.S. 714
    ,    722,    726    (1986).        Justice    Hagedorn's
    majority opinion fails to tie its concept of an institutional
    I do not contest that the legislature's institutional
    11
    interest may permit it to intervene in litigation on its own
    branch's behalf.    For this reason, I join Justice Hagedorn's
    opinion with respect to 2017 Wis. Act 369, § 5 (Wis. Stat.
    § 13.365) and § 97 (Wis. Stat. § 803.09(2m)).
    I further emphasize that this concurrence/dissent should
    not be read to advance the position that the attorney general,
    as part of the executive branch, has the sole power to decide
    the litigation positions of other constitutional officers when
    those officers are named parties in a lawsuit.           We have
    previously warned that such a practice "would give the attorney
    general breathtaking power" and "would potentially make the
    attorney general a gatekeeper for legal positions taken by
    constitutional officers, such as the governor or justices of
    this court sued in their official capacity." Koschkee v. Evers,
    
    2018 WI 82
    , ¶13, 
    382 Wis. 2d
    666, 
    913 N.W.2d 878
    (per curiam).
    Likewise, irrespective of Wis. Stat. § 14.11(2), when a
    conflict arises and the attorney general, as part of the
    executive branch, is unable to represent a named judicial party,
    it is the judicial branch rather than the executive branch that
    selects subsequent representation. See
    id., ¶13 n.3
    (citing SCR
    81.02(1)) (referring to "this court's practice of appointing
    counsel for a court, for judges sued in their official
    capacity . . . and   for  boards,  commissions   and  committees
    appointed by the supreme court").
    9
    No.       2019AP614-LV & 2019AP622.rfd
    interest    to      any   constitutional          text.        This   is   fatal     to   its
    argument because a separation-of-powers analysis begins and ends
    with the Wisconsin Constitution.
    ¶175 The       other    legislative           power       relied     upon    by     the
    majority, the power of the purse, is found in the Wisconsin
    Constitution.          Wis. Const. art. VIII, § 2 ("No money shall be
    paid out of the treasury except in pursuance of an appropriation
    by   law.");     see      Justice    Hagedorn's       majority        op.,    ¶68.        The
    legislature's control of the purse strings, however, cannot be
    read so broadly that it allows the legislature to curtail the
    functions      of     another       branch    even        in     an   area    of     shared
    authority.12        See Gabler v. Crime Victims Rights Bd., 
    2017 WI 67
    ,
    ¶4, 
    376 Wis. 2d 147
    , 
    897 N.W.2d 384
    ("[N]either the legislature
    nor the executive nor the judiciary 'ought to possess, directly
    or indirectly, an overruling influence over the others in the
    administration         of    their    respective           powers.'"       (quoting       The
    Federalist No. 48, at 305 (James Madison) (Clinton Rossiter ed.,
    1961))).    If it were so broad, the legislature could authorize
    itself to veto any function constitutionally assigned to the
    executive or judiciary because money is required to enforce the
    law and maintain a judiciary.                     Such an "overruling influence"
    over the other branches is not constitutionally tolerable.
    In fact, the Wisconsin legislature's constitutional
    12
    "power of the purse" is substantially more constrained relative
    to other state and the federal constitutions because the
    Wisconsin   Constitution  grants   the  governor  "coextensive"
    authority over appropriations legislation. Wis. Const. art. V,
    § 10(1)(b); State ex rel. Wis. Tel. Co. v. Henry, 
    218 Wis. 302
    ,
    315, 
    260 N.W. 486
    (1935).
    10
    No.   2019AP614-LV & 2019AP622.rfd
    B
    ¶176 Even      assuming       the     power    of     the    purse     gives       the
    legislature a share of the power to resolve litigation, I do not
    agree with the majority's mechanical adherence to a strict "no
    set of circumstances" test for facial challenges.
    ¶177 The majority cites to United States v. Salerno, 
    481 U.S. 739
    , 745 (1987), for the standard that the challenging
    party "must establish that no set of circumstances exists under
    which   the      [challenged       act]   would      be    valid."         See    Justice
    Hagedorn's majority op., ¶40 n.12.                  However, this dicta from the
    Salerno    case    has     been    applied       inconsistently      by     the       United
    States Supreme Court depending upon the nature of the facial
    challenge.       See, e.g., Planned Parenthood of Se. Pa. v. Casey,
    
    505 U.S. 833
    (1992) (adopting the undue burden test for facial
    challenges to state abortion laws); see also City of Chicago v.
    Morales, 
    527 U.S. 41
    , 55 n.22 (1999) (plurality opinion) ("To
    the extent we have consistently articulated a clear standard for
    facial challenges, it is not the Salerno formulation . . . .");
    Janklow    v.    Planned    Parenthood,          Sioux    Falls    Clinic,       
    517 U.S. 1174
    , 1175 n.1 (1996) (mem.) (citing United States Supreme Court
    cases     that    did    not      apply   the      Salerno    test     to    a        facial
    challenge).         Recognizing       the    United       States    Supreme       Court's
    inconsistency with regard to facial challenges, this court has
    previously declined to apply the no set of circumstances test to
    an   Establishment       Clause     challenge       where    there    was        no    clear
    United States Supreme Court precedent for doing so.                          Jackson v.
    Benson, 
    218 Wis. 2d 835
    , 854 n.4, 
    578 N.W.2d 602
    (1998); see
    11
    No.    2019AP614-LV & 2019AP622.rfd
    also State v. Konrath, 
    218 Wis. 2d 290
    , 305 n.15, 
    577 N.W.2d 601
    (1998) ("[T]he United States Supreme Court has not consistently
    applied the 'no set of circumstances' language.").
    ¶178 The         majority     claims        this      test     is    nonetheless
    appropriate as an exercise of judicial modesty that will avoid
    judicial    overstepping           into     the     legislature's          prerogative.
    However,    the    majority       effectuates       the    exact   opposite     result.
    Instead    of     respecting      the     coequal     branches,      it    forces   the
    subverted branch, here the executive, to repeatedly vindicate
    its    constitutionally            delegated        role      through       as-applied
    challenges.        That litigation burden             may itself be          undue and
    substantially detracts from the time and resources that both
    branches    should      instead     be    directing       toward   their     respective
    constitutional functions.
    ¶179 More distressingly, the piecemeal litigation invited
    by the majority means that the judiciary will have to engage in
    line-drawing that is effectively policy-making, a clear overstep
    of its constitutional role.               The much narrower statutes enacted
    by other states demonstrate that it is for the legislature, not
    the judiciary, to determine a dollar threshold where the power
    of the purse is implicated.                  See Justice Hagedorn's majority
    op., ¶70.       For example, the Connecticut legislature limited its
    involvement       to   settlements        over    $2,500,000.        See    Conn.   Gen.
    Stat. Ann. § 3-125a(a) (2019).                   The Oklahoma legislature set a
    threshold of $250,000.             See Okla. Stat. Ann. tit. 51 § 200A.1.
    (2019).     In Utah, legislative approval only becomes mandatory
    for   settlements        that     might     cost     more     than    $1,000,000     to
    12
    No.       2019AP614-LV & 2019AP622.rfd
    implement.        Utah Code Ann. § 63G-10-202 (2018).                          In contrast,
    Wisconsin's legislature granted itself an unfettered veto power
    in every proposed settlement, compromise, or discontinuation of
    not only civil cases where the attorney general is defending the
    State of Wisconsin, but also where the executive is prosecuting
    the law.         I fail to see the touted judicial modesty in an
    approach that will result in an exercise of judicial policy-
    making.
    ¶180 Instead,          this   court     should          determine       whether     the
    Litigation Control provisions substantially interfere with the
    function    of    the      executive       because       of    their     unconstitutional
    overbreadth.13          An     overbreadth        challenge       is    appropriate      upon
    "specific reasons weighty enough to overcome our well-founded
    reticence" in entertaining facial challenges.                            Sabri v. United
    States,     
    541 U.S. 600
    ,    609-10       (2004)       (citing     United      States
    Supreme     Court      cases    applying      an    overbreadth          test    to    facial
    challenges in various substantive contexts).                           Indeed, the United
    States Supreme Court will evaluate a facial challenge alleging
    that    a   statute      is     unconstitutionally             overbroad       where     "good
    reason"     exists——generally          where       the    statute        may    encumber     a
    fundamental constitutional protection.                        Id.; see, e.g., Aptheker
    v. U.S. Sec'y of State, 
    378 U.S. 500
    , 515–517 (1964) (applying
    overbreadth       to    evaluate       a    facial       challenge        to     a    statute
    At
    13   oral  argument,   Attorney  General  Kaul   and  the
    Legislative Defendants debated the issue of whether analyzing
    this case as a traditional facial challenge was appropriate. My
    analysis stems from their debate.
    13
    No.    2019AP614-LV & 2019AP622.rfd
    affecting the right to travel because it is "a personal liberty
    protected by the Bill of Rights").
    ¶181 The        United      States       Supreme            Court's           broader
    understanding     of    the     overbreadth     doctrine          is    instructive      for
    this court, as we have not had the opportunity to address the
    overbreadth   doctrine        outside     of   the   First        Amendment       context.
    See, e.g., State v. Stevenson, 
    2000 WI 71
    , 
    236 Wis. 2d 86
    , 
    613 N.W.2d 90
    ; Konrath, 
    218 Wis. 2d 290
    .                    As we noted in Konrath,
    the limited use of the overbreadth doctrine is based on third-
    party standing concerns:             a private party to whom a statute
    constitutionally        applies     could      escape       his        or   her   deserved
    sanction because of the statute's unconstitutional application
    to parties    not before the 
    court. 218 Wis. 2d at 305
    .                  We
    tolerate this result and modify the rules of standing in the
    First Amendment context because of "the gravity of a 'chilling
    effect' that may cause others not before the court to refrain
    from     constitutionally          protected         speech            or    expression."
    Stevenson, 
    236 Wis. 2d 86
    , ¶12 (quoted sources omitted).
    ¶182 Here, there is no third-party standing concern.                              The
    constitutional         and      unconstitutional            applications          of     the
    Litigation    Control        provisions     affect      a    single         party:      the
    attorney general.        By assuming jurisdiction over this case, the
    court obtained jurisdiction over the only party that could be
    14
    No.      2019AP614-LV & 2019AP622.rfd
    affected by the requested declaratory and injunctive relief.14
    This       eliminates        the   possibility         for     judicial        overreach         that
    standing is meant to moderate.
    ¶183 Additionally, application of the overbreadth doctrine
    in    a        separation    of    powers      challenge       such      as    this     one      would
    prevent           the       "incremental            erosion"       of         our      tripartite
    constitutional structure, a harm as grave as the chilling effect
    on    protected          speech    in    the    First     Amendment           context.15          See
    Commodity Futures Trading Comm'n v. Schor, 
    478 U.S. 833
    , 859–62
    (1986)          (Brennan,      J.,      dissenting).              With        respect       to    the
    Litigation          Controls       provisions         particularly,           the     overbreadth
    doctrine          would      alleviate        the     danger      of     the        legislature's
    "selective enforcement" of its new veto power to discriminately
    force the executive to continue litigation no longer deemed to
    be in the public interest.                    Cf. Stevenson, 
    236 Wis. 2d 86
    , ¶13;
    see       also     Gabler,     
    376 Wis. 2d 147
    ,         ¶5    (warning          that     absent
    separation          of      powers      the    legislature          could       "first        'enact
    tyrannical laws' then 'execute them in a tyrannical manner.'"
    In other words, the facial remedy would be no broader
    14
    than the as-applied remedy since the only potential as-applied
    challenger is currently under this court's jurisdiction.     This
    renders    the   distinction  between    the   two   analytically
    meaningless.   See Citizens United v. Fed. Election Comm'n, 
    558 U.S. 310
    , 331 (2010) ("The distinction [between facial and as-
    applied challenges] . . . goes to the breadth of the remedy.").
    Incremental
    15          erosion   "undermines the   checks   and
    balances . . . designed to promote governmental accountability
    and deter abuse."      Panzer v. Doyle, 
    2004 WI 52
    , ¶52, 
    271 Wis. 2d 295
    , 
    680 N.W.2d 666
    , overruled on other grounds by
    Dairyland Greyhound Park, Inc. v. Doyle, 
    2006 WI 107
    , 
    295 Wis. 2d 1
    , 
    719 N.W.2d 408
    .
    15
    No.    2019AP614-LV & 2019AP622.rfd
    (quoting 1 Montesquieu, The Spirit of the Laws 151-52 (Oskar
    Piest et al. eds., Thomas Nugent trans., 1949) (1748))).                                              It
    also would prevent "practically unbridled . . . discretion" in
    delaying or denying executive decision-making on how to best
    enforce the law.             Cf. Stevenson, 
    236 Wis. 2d 86
    , ¶13.
    ¶184 Given the absence of third-party standing issues and
    the     gravity         of     the     harm       alleged         with     respect        to     these
    provisions, there is "good reason" for this court to apply the
    overbreadth            doctrine      to    the     Litigation         Control         provisions,16
    consistent with the United States Supreme Court's approach.                                        See
    
    Sabri, 541 U.S. at 609-10
    ; see also Richard H. Fallon, Jr., As-
    Applied         and    Facial     Challenges           and    Third-Party            Standing,     113
    Harv.      L.    Rev.     1321    (2000)         (advocating        that       the    review     of   a
    facial challenge should be evaluated on a "doctrine-by-doctrine
    basis"      and        guided     by      "the    applicable         substantive          tests       of
    constitutional validity").
    ¶185 In the context of a motion to dismiss review, this
    court's         overbreadth          inquiry      is     whether         the    Plaintiffs        have
    stated a claim that the Litigation Control provisions sweep so
    broadly         that    they     "unduly         burden      or    substantially          interfere
    with" the executive branch's power to execute the law.                                             See
    
    Horn, 226 Wis. 2d at 644
    .          We   must     accept         as   true    the
    This conclusion might be true in all shared-powers
    16
    analyses, but I leave that question for another time.   I focus
    my application of the overbreadth doctrine on the Litigation
    Control provisions because, as compared to the other challenged
    provisions, only their sweeping grab of power could unduly
    burden or substantially interfere with the executive branch's
    function.
    16
    No.   2019AP614-LV & 2019AP622.rfd
    Plaintiffs' allegations that the Litigation Control provisions
    can:       (1) prolong      litigation deemed no longer in the public
    interest;       (2) lock      in     public        resources         on      those     cases;
    (3) undermine       the     attorney       general's          leverage      at     settlement
    conferences        by   removing         ultimate       settlement         authority;       and
    (4) inhibit         the      executive's           check        on        unconstitutional
    legislative action.           See Voters with Facts, 
    382 Wis. 2d
    1, ¶27
    (quoting Data Key Partners, 
    356 Wis. 2d 665
    , ¶19).
    ¶186 To assess the burden on a branch of government, the
    concern is with "actual and substantial encroachments by one
    branch into the province of another, not theoretical divisions
    of    power."       Martinez        v.    DILHR,     
    165 Wis. 2d 687
    ,         697,    
    478 N.W.2d 582
         (1992)      (quoting       J.F.     Ahern      v.    Bldg.       Comm'n,    
    114 Wis. 2d 69
    , 104, 
    336 N.W.2d 679
    (Ct. App. 1983)).                               The court has
    in     previous     cases     relied       upon     affidavits            and     statistical
    analyses.         See   
    Friedrich, 192 Wis. 2d at 25-30
          (relying    on
    affidavits from judges and attorneys to assess burden to the
    judicial     branch);       State    v.    Holmes,        
    106 Wis. 2d 31
    ,         70,    
    315 N.W.2d 703
    (1982) (relying on statistical evidence to assess the
    burden on the judicial branch caused by the challenged statute).
    In this case, however, there has been no factual development as
    to the amount and types of cases the attorney general litigates,
    the types and frequency of resolutions pursued in those cases,
    or the kinds of burdens the Litigation Control provisions now
    impose on that litigation.                Only after development of the facts
    can    a   court    determine       whether       the     sweep      of    the     Litigation
    Control provisions unduly burdens or substantially interferes
    17
    No.   2019AP614-LV & 2019AP622.rfd
    with the attorney general's ability to execute the law through
    litigation.
    ¶187 I    conclude   that   the       complaint    and   the   reasonable
    inferences drawn therefrom sufficiently states a claim that the
    sweep of the Litigation Control provisions will unduly burden or
    substantially   interfere   with     the   executive    branch's    power    to
    execute the law through civil litigation.              Accordingly, I would
    affirm the circuit court's denial of the motion to dismiss the
    Litigation Control provisions and remand the case to the circuit
    court to proceed through the ordinary course of litigation.                 The
    temporary injunction should be reinstated on remand because the
    circuit court did not erroneously exercise its discretion.                  Its
    written decision states the correct law, applies that law to the
    facts of record, and demonstrates a reasoned process in reaching
    its conclusion.    See Thoma v. Vill. of Slinger, 
    2018 WI 45
    , ¶11,
    
    381 Wis. 2d 311
    , 
    912 N.W.2d 56
    .
    ¶188 For the foregoing reasons, I respectfully concur in
    part and dissent in part.
    ¶189 I    am   authorized   to    state     that    Justice    ANN   WALSH
    BRADLEY joins this concurrence/dissent.
    18
    No.    2019AP614-LV & 2019AP622.bh
    ¶190 BRIAN HAGEDORN, J.                (concurring in part, dissenting
    in part).      In 2017 Wis. Act 369, the legislature defined a new
    category of formal or official executive branch documents and
    communications        called    "guidance         documents."           The     legislature
    established      certain      requirements          governing      their      contents,     a
    process   governing       their      issuance,       and    a   procedure         permitting
    their administrative and judicial challenge.                       The majority bases
    its declaration that two provisions are unconstitutional on this
    proposition:       legislative          governance         over    guidance       documents
    regulates executive branch thought and therefore invades core
    executive power.          Hence, it throws the constitutional penalty
    flag    and    declares    as     facially        unconstitutional            a   statutory
    provision      requiring      that    the     law    be    cited    in    formal     agency
    communications.         It also declares a notice-and-comment period
    prior     to    the     issuance         of       guidance        documents        facially
    unconstitutional.
    ¶191 The majority's thesis, however, is wrong on the facts
    and    runs    contrary    to     the    plain       language      of     the     laws    the
    legislature passed.        This means its constitutional conclusion is
    similarly faulty.          The court may assert it is upholding the
    separation of powers, but it is not.                        The powers exercised by
    the    legislature     here     are     properly      within      their       province,    at
    least on a facial challenge.                  Although the majority denies it,
    the majority takes these powers away based on the thinnest of
    foundations——its misguided determination that guidance documents
    regulate executive branch thought.                   This isn't what the statutes
    do, and every other error follows from this flawed wellspring.
    1
    No.   2019AP614-LV & 2019AP622.bh
    Guidance documents regulate executive branch communications with
    the public——a permissible and longstanding area of legislative
    regulation.      I would hold that all of the guidance document
    provisions survive a facial challenge.
    I.    WHAT GUIDANCE DOCUMENTS ARE
    ¶192 My     disagreement       with       the   majority    is   not    over   the
    meaning    of    the        constitution;       we    both     embrace      the     same
    separation-of-powers           principles.            Rather,       the     majority's
    analytical error rests with its mistaken interpretation of what
    guidance    documents         are   and     what      they    do.         Wis.    Stat.
    § 227.01(3m).1     The new statute affirms that guidance documents
    1   2017 Wis. Act 369, § 31 created the following subsection:
    (a) "Guidance document" means, except as provided in
    par.   (b),  any   formal  or  official   document  or
    communication issued by an agency, including a manual,
    handbook, directive, or informational bulletin, that
    does any of the following:
    1. Explains the agency's implementation of a statute
    or rule enforced or administered by the agency,
    including the current or proposed operating procedure
    of the agency.
    2. Provides guidance or advice with respect to how the
    agency is likely to apply a statute or rule enforced
    or administered by the agency, if that guidance or
    advice is likely to apply to a class of persons
    similarly affected.
    (b) "Guidance document" does not include any of the
    following:
    1. A rule that has been promulgated and that is
    currently in effect or a proposed rule that is in the
    process of being promulgated.
    2
    No.    2019AP614-LV & 2019AP622.bh
    are not rules; they do not have the force of law.                Rather,
    guidance   documents   are   "formal   or     official   documents     or
    communications issued by an agency" that either explain how an
    agency is implementing a rule, or provide guidance or advice on
    how the agency is likely to apply a statute or rule if it is
    2. A standard adopted, or a statement of policy or
    interpretation made, whether preliminary or final, in
    the decision of a contested case, in a private letter
    ruling under s. 73.035, or in an agency decision upon
    or disposition of a particular matter as applied to a
    specific set of facts.
    3. Any document or activity described in sub. (13) (a)
    to (zz), except that "guidance document" includes a
    pamphlet or other explanatory material described under
    sub. (13) (r) that otherwise satisfies the definition
    of "guidance document" under par. (a).
    4. Any document that any statute specifically provides
    is not required to be promulgated as a rule.
    5. A declaratory ruling issued under s. 227.41.
    6. A pleading or brief filed in court by the state, an
    agency, or an agency official.
    7. A letter or written legal advice of the department
    of justice or a formal or informal opinion of the
    attorney general, including an opinion issued under s.
    165.015 (1).
    8. Any document or communication for which a procedure
    for public input, other than that provided under s.
    227.112 (1), is provided by law.
    9. Any document or communication that is not subject
    to the right of inspection and copying under s. 19.35
    (1).
    Wis. Stat. § 227.01(3m) (2017-18).
    All subsequent references to the Wisconsin Statutes are to
    the 2017-18 version.
    3
    No.    2019AP614-LV & 2019AP622.bh
    likely    to    apply    to     a    class     of   persons        similarly       affected.
    § 227.01(3m)(a).
    ¶193 The        statute       contains    some   clue        as   to   the    type    of
    communications          being        envisioned:             "a     manual,        handbook,
    directive, or informational bulletin."
    Id. While this
    list is
    nonexclusive, these examples help us understand what is meant by
    "formal or official document[s] or communication[s]."
    Id. Not every
    agency communication is a guidance document, only formal
    or official communications that either are or are like manuals,
    handbooks, directives, or bulletins.                   See Schill v. Wis. Rapids
    School Dist., 
    2010 WI 86
    , ¶66, 
    327 Wis. 2d 572
    , 
    786 N.W.2d 177
    (explaining      that    "general        terms . . . may           be    defined     by    the
    other words and understood in the same general sense" under the
    interpretive canon of noscitur a sociis (a word is "known by its
    associates")).
    ¶194 The guidance document provisions undoubtedly reach far
    and   wide     into    agency       operations.        Agencies         regularly     create
    informational documents to inform the public regarding a given
    area of law.          These communications do not themselves carry the
    force of law; rather they explain the agency's understanding and
    execution of the law to the public.                          The Plaintiffs and the
    Governor provided the following examples of guidance documents:
       A pamphlet issued by the Department                            of Public
    Instruction    explaining how the                              department
    administers funding;
       A Department of Health Services guide about health
    insurance;
       A bulletin from the Division of Motor Vehicles about
    driver's license exams; and
    4
    No.    2019AP614-LV & 2019AP622.bh
          Forms created by the Department of Children and
    Families explaining eligibility for child support.
    These        are,    in     the       main,       ordinary         sorts       of     official
    communications that greatly affect the public's knowledge of the
    laws that govern them.
    ¶195 This newly defined category of communications comes
    with new statutory requirements.                    Of particular moment are the
    two   provisions        receiving      the    court's       disapproval.              Wisconsin
    Stat.        § 227.05     states      that     agencies          "shall        identify       the
    applicable       provision       of   federal       law    or     the    applicable         state
    statutory       or   administrative          code   provision           that   supports       any
    statement or interpretation of law that the agency makes in any
    publication."           And Wis. Stat. § 227.112 requires, among other
    things,       that      proposed      guidance      documents           be     sent    to    the
    legislative reference bureau and undergo a notice-and-comment
    period before the guidance documents are issued, subject to the
    caveat that public comment periods shorter than 21 days are
    allowed with the governor's approval.2
    II.     ANALYSIS
    ¶196 I refer the reader to the discussion of the separation
    of powers in the majority opinion analyzing the remaining issues
    in this case.        Justice Hagedorn's majority op., ¶¶30-35.                          But by
    way     of    reminder,      a     core     power     is        one     conferred      by    the
    constitution such that only the branch vested with a core power
    2Wisconsin Stat. § 227.112 is cited in full in paragraph 90
    of Justice Kelly's majority opinion.
    5
    No.   2019AP614-LV & 2019AP622.bh
    may exercise that power.          See State v. Horn, 
    226 Wis. 2d 637
    ,
    643, 
    594 N.W.2d 772
    (1999); Tetra Tech EC, Inc. v. DOR, 
    2018 WI 75
    , ¶48, 
    382 Wis. 2d 496
    , 
    914 N.W.2d 21
    (Kelly, J.).                 Not all
    government power has this exclusive character.                   Shared powers,
    those residing where the powers of the branches converge, may be
    exercised by more than one branch so long as no branch "unduly
    burden[s] or substantially interferes[s] with another branch."
    
    Horn, 226 Wis. 2d at 643
    -44.
    ¶197 The Plaintiffs and the Governor argue that all of the
    guidance document provisions impermissibly infringe on a core
    executive power——namely, the Governor's constitutional duty to
    "take care that the laws be faithfully executed."                   Wis. Const.
    art. V, § 4.         This occurs, the parties contend, because the
    legislature is regulating         non-legislative power——the power to
    give advice, for example.         The majority agrees in part and holds
    that two of the guidance document provisions intrude upon the
    core powers of the executive branch.3
    ¶198 The challenged provisions do not intrude upon the core
    powers of the executive branch because determining the content
    and   timing    of   executive    branch      communications      are   not   the
    exclusive      prerogative   of   the       executive.      By    enacting    the
    guidance document provisions, the legislature is carrying out
    3In the alternative, the Plaintiffs and the Governor assert
    that the guidance document provisions unduly burden and
    substantially   interfere   with   the   Governor's  ability   to
    faithfully execute the laws under a shared powers analysis.     I
    conclude that all of the disputed guidance document provisions
    survive a facial challenge under both a core powers and shared
    powers analysis.    But in light of the majority's decision, a
    separate analysis regarding shared powers is unnecessary.
    6
    No.    2019AP614-LV & 2019AP622.bh
    its function of determining what the law should be by passing
    laws pursuant to its constitutional authority.                        Wis. Const. art.
    IV, § 1, § 17; Koschkee v. Taylor, 
    2019 WI 76
    , 
    387 Wis. 2d 552
    ,
    
    929 N.W.2d 600
    (stating legislative power "is the authority to
    make    laws").         And    nothing   in       the   constitution        suggests    the
    legislature cannot, at least in some circumstances, make laws
    that determine the content of certain formal communications from
    the government to the public, or prescribe the process by which
    certain      formal     or    official   documents            and   communications      are
    finalized and issued.
    ¶199 The       legislature     has     long      regulated      at    least     some
    formal executive branch communications about the law——including
    the executive branch's understanding of what the law is, how the
    executive branch is executing the law, and how the executive
    branch intends to execute the law going forward.                            The clearest
    example      may   be    the    mandatory         creation     of   certain    executive
    branch reports.          For instance, Wis. Stat. § 15.04(1)(d) requires
    executive agencies to create a report each biennium, delivered
    "[o]n or before October 15 of each odd-numbered year."                                  The
    report must include what the agency has done, how it operates,
    and    its   goals      and    objectives     moving      forward.
    Id. Similar 7
                                          No.   2019AP614-LV & 2019AP622.bh
    mandated reports regarding what the executive branch is doing
    and plans to do are found throughout Wisconsin law.4
    ¶200 In short, while the formal delineation of a category
    of executive branch communications called guidance documents are
    something new in state law, they are not new in kind.       Here, the
    4 For example, the Read to Lead Development Council, a
    subordinate of the Department of Children and Families, annually
    submits an operation report to appropriate standing committees
    of the legislature.       Wisconsin Blue Book 194 (2019-20).
    Likewise, the Board on Aging and Long-Term Care reports to both
    the governor and the legislature regarding "long-term care for
    the aged and disabled."
    Id. at 184.
    And the Farmland Advisory
    Council, a subordinate council of the Department of Revenue, is
    also required to report annually to the legislature.
    Id. at 226.
    Sometimes the legislature is quite specific in directing
    the content of formal communications and the internal operations
    and decision-making processes in the executive branch.       One
    example is the groundwater coordinating council, found in Wis.
    Stat. § 15.347(13).   This statutory provision not only creates
    the   council  and   its  membership,   it  also   details  with
    particularity how often and under what conditions it can meet.
    § 15.347(13)(f) ("The council shall meet at least twice each
    year and may meet at other times on the call of 3 of its
    members.").    The legislature has further mandated that the
    council must file a report every August
    which summarizes the operations and activities of the
    council during the fiscal year concluded on the
    preceding June 30, describes the state of the
    groundwater resource and its management and sets forth
    the recommendations of the council. The annual report
    shall include a description of the current groundwater
    quality in the state, an assessment of groundwater
    management programs, information on the implementation
    of [Wis. Stat.] ch. 160 and a list and description of
    current and anticipated groundwater problems. In each
    annual report, the council shall include the dissents
    of   any  council   member   to  the   activities  and
    recommendations of the council.
    § 15.347(13)(g).
    8
    No.   2019AP614-LV & 2019AP622.bh
    legislature has passed laws telling the executive branch what
    content must be included in certain communications, how those
    communications must be issued, and the process by which those
    communications may be challenged.            This has never been thought
    of as a power exclusive to the executive, and nothing in the
    constitution      makes   it     so.       The    constitution       gives     the
    legislature the power to say what the law should be.                        At the
    very least, this gives the legislature a say in at least some
    formal executive branch communications to the public about the
    law.      The   challenged     provisions   therefore       should    survive    a
    facial challenge.
    ¶201 The   majority      disagrees    and       concludes     Wis.    Stat.
    §§ 227.05 and 227.112 violate the core powers of the executive
    branch.     Its analysis falls far short of the mark because it
    rests on a singular proposition that finds no support in the
    statutory provisions at issue, and therefore has no basis in the
    constitution.
    ¶202 The majority summarizes its reasoning and conclusion
    as follows:
    Thought must precede action, of course, and guidance
    documents are simply the written record of the
    executive's thoughts about the law and its execution.
    They contain the executive's interpretation of the
    laws, his judgment about what the laws require him to
    do.      Because   this    intellectual  homework   is
    indispensable to the duty to "take care that the laws
    be faithfully executed," Wis. Const. art. V, § 4, it
    is    also    inseparable    from    the   executive's
    constitutionally-vested power.
    Justice Kelly's op., ¶106.
    9
    No.    2019AP614-LV & 2019AP622.bh
    ¶203 This    conclusion,         however,     does     not     follow    from    the
    premises because the guidance document provisions do not control
    or   regulate    executive          branch      thought,      at     least       in   all
    circumstances.        That     is    the   hook    upon     which    the     majority's
    entire analysis rests, and it is mistaken.                       The only thing the
    legislature purports to regulate here is a "formal or official
    document or communication" about the law——in other words, formal
    communications reflecting the product of thought.                           Wis. Stat.
    § 227.01(3m)(a).             The      majority's          explanation        that     the
    legislature is regulating "the necessary predicate to executing
    the law," Justice Kelly's op., ¶107, is wrong on the facts, and
    therefore, wrong on the law.                    The legislature is regulating
    formal communications that are the result of, rather than the
    necessary   predicate        to,    executing     the     law.       By    the    time   a
    guidance document has been reduced to writing, the thinking and
    analyzing has been done.
    ¶204 It     is     true        that   an     executive        branch        document
    explaining when fishing season starts will require the executive
    branch to read and think about the law.                       But there's nothing
    core to the executive branch's powers in disseminating formal
    information     which        answers       that     legislatively            determined
    question.     Indeed, under our constitutional structure, it must
    be the executive that formally disseminates that information;
    that is the branch that executes the law, which necessarily
    10
    No.    2019AP614-LV & 2019AP622.bh
    includes communication about the law.5             The majority's abstract
    approach misses what's actually going on here.              The legislature
    is not invading the executive's ability to read the law or think
    about   the   law    when   it   regulates    how     agencies    officially
    communicate to the public about what the law is and where in the
    statutes the law may be found.
    ¶205 The majority realizes, of course, that the legislature
    can tell the executive branch to communicate on a topic and can
    specify what the communication must include.                Justice Kelly's
    op., ¶¶122-23.      But such a communication, the majority tells us,
    does not meet the statutory definition of a guidance document.
    The majority explains:
    [I]f the legislature can "determine the content" of a
    guidance   document,  then   it  is   no   longer  the
    executive's explanation, or the executive's guidance
    or   advice——it  is  the   legislature's  explanation,
    guidance or advice. So, to the extent the legislature
    commands production of a document, or determines the
    content of a guidance document, it simply is no longer
    a guidance document.
    Id., ¶122. 5
     The majority raises a series of questions asking whether
    the legislature could tell the judicial branch to do similar
    things as the disputed laws do here. Justice Kelly's op., ¶126.
    But the legislature's relationship to the judiciary is far
    different than its relationship to the branch charged with the
    constitutional duty to execute the laws the legislature passes.
    Moreover, the majority's criticisms ring hollow because the
    majority says the legislature can pass laws that do the very
    things it cites; the legislature just has to enact laws
    regarding specific documents (create a youth hunting bulletin,
    for example).     So the majority's criticisms apply just as
    forcefully to its own reasoning, which is to say, not much at
    all.
    11
    No.   2019AP614-LV & 2019AP622.bh
    ¶206 Nothing             in     the        statutes,        however,        supports        this
    conclusion.           If     the    law       commands    that       a    manual      be     created
    reflecting        the            executive's          understanding             and        intended
    application       of       the     law——and      the     statutes         are   full       of   such
    mandates——by definition, the manual will reflect the executive's
    understanding          and       intended        application         of     the       law.      The
    "authorship," as the majority calls it, doesn't change one bit.
    For example, if an executive agency must by legislative command
    create a youth hunting bulletin and cite the relevant law, this
    is a reflection of the executive branch's understanding of the
    law no less than if the executive chooses to do the same thing
    in the absence of such a command.
    ¶207 Moreover,                 the        statutory        definition         of       guidance
    documents       contains         strong       internal    clues          that   the    majority's
    analysis    is     unsound.              The    law     tells       us    guidance      documents
    include manuals, handbooks, or informational bulletins.                                         Wis.
    Stat. § 227.01(3m)(a).                   These have lay definitions, but they
    also appear as terms of art throughout our statutes to describe
    formal agency communications.                      Sometimes our law requires the
    creation of specific informational communications.                                     See, e.g.,
    Wis. Stat. § 7.08(3) (instructing the Elections Commission to
    create     an     election           law        manual);        Wis.       Stat.       § 49.32(3)
    (instructing the Department of Health Services (DHS) to create a
    policy   and     procedural          manual       regarding         aid    to     families      with
    dependent       children);          Wis.      Stat.     § 73.03(57)         (instructing         the
    Department       of    Revenue           to    create     a    tax       increment      financing
    manual); Wis. Stat. § 84.02(4)(e) (instructing the Department of
    12
    No.    2019AP614-LV & 2019AP622.bh
    Transportation      (DOT)       to    create       a    manual          establishing    uniform
    traffic control devices); Wis. Stat. § 108.14(23) (instructing
    the Department of Workforce to create an unemployment insurance
    handbook).       And at other times the statutes authorize, rather
    than    command,    the     creation          of       informational            communications.
    See,    e.g.,    Wis.    Stat.       § 84.01(11)         (instructing            that   the   DOT
    shall issue bulletins, pamphlets and literature as necessary);
    Wis. Stat. § 115.28(4) (instructing the State Superintendent of
    Public    Instruction       to       create      informational             bulletins);        Wis.
    Stat. § 452.05(2) (authorizing the Real Estate Examining Board
    to    prepare    informational            letters       and        bulletins);      Wis.    Stat.
    § 458.03(2)        (authorizing            the         Department          of     Safety      and
    Professional       Services          to    create        informational            letters     and
    bulletins).
    ¶208 It would be extraordinarily odd to read the use of
    terms like manual, handbook, and bulletin in the definition of a
    guidance document to exclude nearly all other statutory uses of
    the    terms    "manual,"       "handbook,"            and    "bulletin."           That's    not
    normally how we do statutory interpretation.                               Bank Mut. v. S.J.
    Boyer    Constr.,       Inc.,    
    2010 WI 74
    ,        ¶31,       
    326 Wis. 2d 521
    ,       
    785 N.W.2d 462
    ("When the same term is used throughout a chapter of
    the statutes, it is a reasonable deduction that the legislature
    intended that the term possess an identical meaning each time it
    appears." (citation omitted)).
    ¶209 The majority's mistaken interpretation also produces
    results    at    odds     with       other    portions             of    the    definition     of
    guidance       documents.            Under       the     majority's            reasoning,     the
    13
    No.    2019AP614-LV & 2019AP622.bh
    optional   creation      of        a       manual    by   the    executive    branch        is   a
    guidance document, while the mandatory creation of that same
    manual containing the same thoughts and written by the same
    authors is not a guidance document.                              But both a legislative
    command to communicate and legislative permission to communicate
    fall well within the statutory language that a guidance document
    "[e]xplains the agency's implementation of a statute or rule
    enforced or administered by the agency" or "[p]rovides guidance
    or advice with respect to how the agency is likely to apply a
    statute or rule enforced or administered by the agency."                                     Wis.
    Stat. § 227.01(3m)(a).                     The majority's approach to authorship
    does not square with the words the legislature wrote.
    ¶210 The two provisions the majority opinion strikes down
    should    easily    survive            a    facial       challenge.        Wisconsin        Stat.
    § 227.05 requires that a guidance document cite the applicable
    laws.    But the majority opinion holds that this is too much for
    the legislature to demand of the executive branch because it
    controls    executive         branch          thought.           Again,    the     majority's
    analysis    is     not   grounded             in    the    constitution,         but   in     its
    misinterpretation        of    the          statutes.        The    legislature        can,      at
    least sometimes, command the executive branch to cite the legal
    basis for its formal explanation of laws.
    ¶211 Similarly,            Wis.           Stat.        § 227.112       mandates         draft
    guidance    documents         be       posted       for    21    days     before    they      are
    officially issued, among other related requirements.                               Posting a
    draft    before    issuance            of    some       formal   communications        is     now
    denominated a regulation of executive branch thought and invades
    14
    No.   2019AP614-LV & 2019AP622.bh
    core       executive   power.     The     majority's        reasoning       is    likewise
    rooted in its notion of authorship that runs counter to the
    statutory       language.         Again,        the   constitution          allows     the
    legislature       to   regulate     the    process     by     which   at     least   some
    formal executive branch communications are issued.                          The majority
    agrees the legislature may do this if it commands the creation
    of such documents, but says the legislature may not do this if
    it merely permits the creation of such documents.                            Nothing in
    the statutes or the constitution suggests such a distinction.6
    III.      CONCLUSION
    ¶212 I     part   ways   with      the    majority     not     in    the    general
    constitutional         principles    at     stake,      but     in    the     majority's
    erroneous interpretation of what guidance documents are under
    As the majority notes, Wis. Stat. § 227.05 was not
    6
    challenged by the Plaintiffs; it was raised in the Governor's
    motion for a temporary injunction.     Therefore, the underlying
    merits are not before us, only the motion for temporary
    injunction. Rather than conduct an analysis under the rubric we
    have established for reviewing temporary injunctions, the
    majority goes right to the merits and decides the legal claim.
    The majority could have determined the claim is likely to be
    successful, and gone on to analyze the remaining factors. That
    is ordinarily how a claim under this posture would be analyzed
    since the legal question presented here relates only to the
    temporary injunction, not to the legal claim in the case itself.
    I also observe that even if the circuit court appropriately
    granted the temporary injunction, as the majority opinion
    concludes, the Legislative Defendants should still be able to
    raise their affirmative defenses on remand, including their
    claim that the governor does not have standing to sue the
    legislature on this question.    The Legislative Defendants did
    not waive any opportunity to brief that question in the circuit
    court on remand given the question now before us relates only to
    the temporary injunction.
    15
    No.    2019AP614-LV & 2019AP622.bh
    the laws the legislature passed.                The majority's criticisms and
    constitutional       conclusion   all      derive      from     this   error.    The
    unfortunate     result    is   that   the       court's    decision     undermines,
    rather than protects, the separation of powers by removing power
    the people gave to the legislature through their constitution.
    I would have directed the circuit court to grant the motion to
    dismiss   the    facial    challenge       to    all     the    guidance    document
    provisions challenged here and vacated the order enjoining these
    provisions in full.
    ¶213 I      am    authorized      to     state       that     Justice    ANNETTE
    KINGSLAND ZIEGLER joins this dissent.
    16
    No.   2019AP614-LV & 2019AP622.bh
    1