The HJR 5 Constitutional Amendment: Why We Must Vote No!

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.”

Article II of the Idaho Constitution seeks to protect us from that tyranny with language declaring the separation of powers: “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.”

On the upcoming Idaho ballot is a proposed Constitutional Amendment, HJR 5, which seeks to enshrine in our constitution the power of the legislature to review administrative rules. On its face it seems like a good idea to protect us from over regulation by the executive branch. Of course we should vote for it, the executive agencies are out of hand and we need to control them. But the devil is in the details.

HJR 5 adds a new section to Article III which gives the legislature the constitutional power to review the rules that executive agencies make. The motive for this amendment was a recent Idaho Supreme Court case where the legislature’s ability to review executive branch rulemaking was challenged. The legislature just barely won this case and they want to retain their power of review which is currently only authorized by statute. The legislature has proposed this constitutional amendment, putting it to a vote of the people, thereby asking for our permission to have such a legislative power declared constitutionally.

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Like modern medicine which aims to treat symptoms without focusing on the foundational cause of the illness, HJR 5 seeks to apply a band-aid, while ignoring the root cause of the problem and giving no attention to the side effects.

Under the separation of powers, only the legislature makes laws. And rules made by the executive branch which have the force and effect of law, essentially have become laws. Administrative rulemaking by executive agencies is unconstitutional and prohibited by Article II because, “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…” Making rules is an exercise of legislative power which does not properly belong to members of the executive branch.

Currently the bureaucrats get away with it because rulemaking has become a custom and practice under the Idaho Administrative Procedures Act, passed years ago. It was unconstitutional then and it is unconstitutional now. We have become ignorant of the foundational principles of the separation of powers because we see them abused routinely and have grown accustomed to the practice. We cannot remember what constitutional government would look like, because we can only catch an occasional glimpse of its remains. Similarly, the judiciary has a lapse of constitutional memory, so no point in making an Article II challenge there.

However well intentioned, HJR 5 has a serious side effect. The last nine words of Article II make an exception: …”except as in this constitution expressly directed or permitted.” HJR 5 will add language to the constitution which expressly directs or permits executive rulemaking, giving constitutional permission for this presently unconstitutional practice to continue.

I understand why the backers of HJR 5 want to work from where we are today and 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 long ago and here we are today.

To go with HJR 5 because of what it pretends to do on its face is to leave the constitution and the separation of powers in the dust. How do we fix it then? What future band-aid will fix the problem we are creating now with HJR 5?

Do we stick to the constitution and its principles or do we think we can make a problem a little better by breaking the constitution again? If we don’t hold to a line, then we fall off the edge and slide further down the slope of the progressive administrative agenda.

The tyranny of our times is administrative tyranny. The executive branch makes rules that boldly go where no law has gone before. Increasingly, rules and regulations promulgated by unelected bureaucrats are the “force” of government imposed on you! This is a problem!

Instead of the HJR 5 band-aid, 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. There is nothing wrong with executive agencies making their own rules of internal conduct. It is, in fact, a good idea for the agencies to have well defined self-direction. The problem lies when those rules reach outside of the agencies and become “laws” upon us.

The backers of HJR 5 are motivated by the close ruling from the Idaho Supreme Court on this issue to be preemptive and secure legislative authority constitutionally, but there are better solutions. First, the Idaho Administrative Procedures Act, which is the source of the problem was created by the legislature. It is their creation, which they have the right to alter, reform, or abolish. And they should. Legislation is a power which belongs to the legislature, not the executive or the courts. Secondly, the legislature already has the power of review and abolishment of administrative rules that it does not like. HJR 5 attempts to express that existing power in the constitution. The legislature created their own problem here. It is time for a major statutory reform to limit rulemaking powers to the internal operations of the executive branch and possibly a constitutional amendment that clarifies the separation of powers without language expressly directing or permitting administrative rulemaking as if it were law. As it is, HJR 5 is just a patch on a problem which ignores the prohibitions existing in Article II and puts the principles behind the separation of powers into the blender of popular lawmaking. We must vote NO on HJR 5 and try again with a better approach.

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