BACKGROUND: One of the long enduring planks of the Republican Party in most United States jurisdictions is the idea of lowering regulation, a.k.a. deregulation. After decades of regulatory activity by the executive branch, Idaho today has 722 different sets of rules that purport to assist the governor in the enforcement of the statutes passed by the legislature and signed into law by the governor. Idaho is one of eight States to enjoy a “legislative veto.” In these States, a legislative veto can nullify an executive branch rule promulgated by the governor, similar to the way an executive branch veto can nullify a bill enacted by the legislature. In Idaho, a legislative veto can only be accomplished by a concurrent resolution, see Idaho Code § 67-5291.
In 1990, the legislative veto was found by the Idaho State Supreme Court to be constitutional. Mead v. Arnell, 117 Idaho 660, 791 P.2d 410 (1990); see Idaho Const. Art IV § 5 (“The supreme executive power of the State is vested in the governor, who shall see that the laws are faithfully executed.”) The legislature delegated rulemaking power, but not legislative power to the executive for the purpose of enforcing the statutes through the creation of specific rules for individual circumstances of law enforcement. To avoid a collision with Article 3, Section 1 of the Idaho Constitution, the State Supreme Court stated, “while these rules and regulations may be given the ‘force and effect of law,’ they do not rise to the level of statutory law. Only the legislature can make law.” Mead, 117 Idaho at 664, 791 P.2d at 415. This is why they can be vetoed by concurrent legislative resolution.
In 2014, the legislature passed a concurrent resolution to add the legislative veto power to the Idaho Constitution, but I argued in opposition to its language, and it failed on the ballot. I rewrote it in late 2015, and submitted it to the legislature. In 2016, it passed both branches again to be on the ballot this November.
WHAT IS IT: HJR 5 proposes to add a new Section 29 to Article III of the Idaho Constitution, to wit:
SECTION 29. LEGISLATIVE RESPONSE TO ADMINISTRATIVE RULES. The legislature may review any administrative rule to ensure it is consistent with the legislative intent of the statute that the rule was written to interpret, prescribe, implement or enforce. After that review, the legislature may approve or reject, in whole or in part, any rule as provided by law. Legislative approval or rejection of a rule is not subject to gubernatorial veto under Section 10, Article IV, of the Constitution of the State of Idaho.
WHY TO VOTE YES: After HJR 5 passes, the legislature can use that confirmed constitutional veto power over executive branch rules, without being dependent on the Mead case. The legislature may continue to review, then approve or reject new or revised rules at the beginning of each session. However, if Idaho is serious about stimulating the economy and increasing economic freedom, HJR 5 is only the first step. The next step is for the legislature to pass a law requiring executive branch agencies to undertake review of their rules as a continual part of executive agency management processes. Good management is key to good government.
With 722 sets of IDAPA* rules today, Idaho’s initial foray into deregulation may be technically difficult and politically treacherous. However, if Idahoans believe it is important to reinvigorate Idaho’s 10th amendment sovereignty within our federal-state structure of federalism, Idaho must generate the economic power to wean itself from dependency on federal funds. HJR 5 is the first step toward long-term reinvigoration of Idaho’s economy through the increase of economic freedom for private capital to move and create jobs without being strangled by regulations. HJR 5 enhances the separation of powers by providing a legislative check on executive rulemaking.
LINKS TO RESOURCES:
- Idaho Administrative Procedure Act, “IDAPA rules” are found here: https://adminrules.idaho.gov/
- Here is the actual bill text of HJR 5: https://legislature.idaho.gov/legislation/2016/HJR005.pdf
- Here is the Mead case, and if it gets overruled, then this legislative power will vanish, unless HJR005 puts it into the Constitution: https://www.courtlistener.com/opinion/1234158/mead-v-arnell/
Click here to read an argument in opposition to HJR 5.