HJR 5: Argument in opposition

A well-intentioned end run around the Constitution

We spend over half of our local and state tax dollars for education yet we are a population that doesn’t read. If we read Article II of the state constitution, especially the last sentence, we would understand that HJR 5 is an end run around the constitutional prohibition of administrative rule making which currently is unconstitutional. Article II says: “DEPARTMENTS OF GOVERNMENT. The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.”

It is very sneaky how this all works because on its face it seems like a good idea to protect us from over regulation: of course we should vote for it. But the devil is in the details. HJR 5 will expressly direct or permit administrative rulemaking by adding it to the constitution.

Currently the bureaucrats get away with it because we are ignorant of the separation of powers and we have rotten courts which can’t seem to read very well either, so no point in making a challenge there. I understand that we all want greater controls over the administrative elite that runs our world, but HJR 5 is a very bad solution. Instead, we need a legislature that takes back their law making power (and rules made by bureaucrats should never be laws), limiting rulemaking to the internal operations of the executive agencies only. James Madison said, “The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may very justly be pronounced the very definition of tyranny.”

Look at what has happened to the federal government since the passage of the Administrative Procedures Act in the 1930’s. It is regulatory madness gone insane with its assumed power. Idaho is following closely behind and HJR 5 will sanction it in the constitution. Vote NO on HJR 5 and work to get the legislature to restrain the rulemaking power to the internal operations of the executive agencies only. We are being duped by this seemingly good idea.

After posting the foregoing on Facebook, Art Macomber, a proponent of HJR 5 suggested I was wrong on this one. While I respect his opinion and efforts to make things better, the reason why I don’t think I am wrong on this is because the essential facts remain. Administrative rulemaking by executive agencies is unconstitutional and prohibited by Article II. HJR 5 would “expressly permit or direct” them by adding words to the constitution which would make such rulemaking constitutional. I understand those who want to work from where we are today and work within what the system will allow under current policy/custom/usage/practice, but that is how we got in this mess in the first place. We stepped out of the bounds of the constitution(s) and here we are. To compromise here and go with HJR 5 because of what it portends to do on its face is to leave the constitution and the separation of powers in the dust. How do we fix it then? Do we stick to the constitution and its principles or do we think we can make bad a little better through well intended capitulation? If we don’t hold to a line, then we fall off the edge and slide further down the slope of the progressive agenda.

Vote NO on HJR 5!


Click here to read an argument in favor of HJR 5.

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