Constitutional Law

The “free exercise” clause of the First Amendment to the U.S. Constitution limits governments’ ability to restrict religious exercise, providing that “Congress shall make no law … prohibiting the free exercise [of religion].” Article I, Section 18 of the Wisconsin Constitution similarly prohibits government infringement of “the right of every person to worship Almighty God according to the dictates of conscience.” Since 1990, the Wisconsin Constitution has been interpreted to restrict government action in more circumstances than does the U.S. Constitution, but recent U.S. Supreme Court decisions suggest that the Court’s interpretation of the free exercise clause has shifted. This issue brief summarizes recent developments in free exercise jurisprudence at the federal level.

The U.S. system of government grants certain powers to the federal government and reserves all other powers to the states and the people. One of Congress’s enumerated constitutional powers is the spending power – the power to spend federal funds. In general, courts have held that Congress has broad authority to attach conditions when exercising its spending power. However, courts have recognized outer limits on such conditions, including when the conditions arguably compel states to take certain actions. A motion recently filed in federal court argues that a prohibition on certain state tax cuts in the American Rescue Plan Act of 2021 is unconstitutionally coercive. This issue brief provides background information that may be useful for understanding the key constitutional provisions and case law relating to conditions on federal funding.

Under the Wisconsin Constitution, the Governor may approve appropriation bills “in whole or in part.” The partial veto power afforded Wisconsin’s governors is considered to be one of the most extensive in the nation. Since its creation by constitutional amendment in 1930, Wisconsin governors have exercised the partial veto with increasing regularity and imagination. In response, the Legislature has challenged the Governor’s use of the partial veto in court and, on two occasions, amended the constitution with voter approval. This information memorandum provides background information on the authority of the Governor to partially veto appropriation bills under Wis. Const. art. V, s. 10 (1) and describes the limits on the Governor’s use of this authority.

Recent protests, including protests against racial injustice and protests of states’ responses to the COVID-19 pandemic, have prompted challenges on First Amendment grounds. This issue brief summarizes relevant case law and recent court actions.

Like the U.S. Constitution, the Wisconsin Constitution provides for three branches of government, each with its own powers. The separation of powers doctrine is a “fundamental principl[e] of the American constitutional system,” but it can be difficult to apply in practice, particularly with respect to disputes between the legislative and executive branches.

Article V of the U.S. Constitution governs the process that must be used to amend the U.S. Constitution. It provides two procedures to propose an amendment to the U.S. Constitution and two procedures to ratify a proposed amendment. Specifically, Article V of the U.S. Constitution says the following: The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate. This information memorandum discusses the manner in which an amendment to the U.S. Constitution may be proposed and ratified.

The Wisconsin Constitution establishes that the State of Wisconsin enjoys sovereign immunity, or protection from suit without its consent, in its own courts. Like other states, Wisconsin also enjoys sovereign immunity in federal courts, as expressed in the U.S. Constitution. Sovereign immunity’s protections are not absolute, however, either in Wisconsin courts or federal courts. This information memorandum provides an overview of how sovereign immunity functions in the federal and Wisconsin court systems, and discusses the different exceptions to the doctrine that apply in both court systems.