HJR 5: Question of balance

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One of the Founding Fathers’ most precious tenets — separation of powers — will soon be tested in Idaho. On the Nov. 8 ballot is HJR 5, a second bite at an apple we rejected in 2014. The ballot question is written simply and convincingly, making “yes” sound intuitive. Why shouldn’t the Legislature “review any administrative rule to ensure it is consistent with the legislative intent of the statute that the rule was written” for? How logical that sounds.

If passed it would amend the Idaho Constitution to create a protected legislative veto — a veto the Idaho Legislature has been exercising for years anyway, despite this constitutional absence.

Why isn’t it there already? Federal law could be a hint; in 1983 a Congressional legislative veto was ruled unconstitutional by the U.S. Supreme Court, and in violation of separation of powers principles in the Chadha case. That ruling followed increasing congressional veto attempts since 1930, using resolutions and statutes to terminate powers Congress had delegated to the president and executive agencies.

These power plays are part of government; balance is not a fixed concept. Ideally when each branch has a hand in lawmaking, no branch has too much power. Yet the Idaho Supreme Court in Mead (1990) approached the issue differently, affirming this state Legislature’s power to veto administrative rules by resolution, without presentment to the governor. “Presentment” is a separation of powers principle in the U.S. Constitution.

A legislative veto, as defined by Cornell University’s Legal Information Institute, is a provision which allows a resolution (passed by legislative majority, but not signed by the governor or president) to nullify a rulemaking or other action taken by an executive agency.

Ironic in its way. Executive agencies make rules to enforce policy, set by statute. Courts interpret their constitutionality. That’s the separation of powers at work, laid out in federal and state constitutions. One “vetoes” another’s decision by definition. Yet with a legislative veto, one branch of government — the Legislature — is vetoing executive agency rulemaking, which was delegated by the same branch — the Legislature — in the first place, to enforce policy set by that branch — the Legislature.

Put that way it almost verges on the absurd, but state legislators use legislative vetoes to quickly nix rules they don’t like and posit they didn’t intend. Rules which in their view go too far, or are found too cumbersome by businesses and constituents who must abide by them. Rules enforcing the policies set by legislators themselves, according to authority they’ve delegated.

It’s a bit dizzying. If it’s not working, perhaps those policies need work, not just rules (which admittedly have been proliferating as both government and the governed become more complex, and the work of states has increased). Through most of American history, that’s mostly the way it’s worked. Legislatures amend or create statutes to tweak problems with the law or its applications, problems sometimes identified by courts. Executive agencies, staffed by subject experts (agriculture, economics, engineering, education, health, law enforcement, and so on), flesh out the day-to-day operational and technical rules to enforce those policies. Each branch has its role.

Remember the Mead court case? With the judicial nod, the state Legislature has already been doing what HJR 5 proposes to constitutionalize, spending the first few weeks of session reviewing new agency regulations with veto power, and without the governor’s signature. Nov. 8 won’t change that. So why bother with a constitutional amendment for a power already exercised?

The 3-2 vote in the Mead case was close; state justices and court opinions can change. Idahoans said “no” to constitutionalizing the legislative veto in 2014, but by only a slim margin; this time the “yes” camp is lobbying hard. And speaking of lobbyists, that — say opponents — is another downside to legislative veto power. Beyond principles of balanced government, opponents including the state attorney general fear the increased influence of supporting lobbyists (and those interests who hire them) on agencies.

The federal position on the U.S. Constitution, as well as the failure of similar provisions in most other states who’ve tried, also threaten the stability of the legislative veto.

“The premise of the U.S. Supreme Court case, as well as the premises of those decided by the state courts, has been that legislative veto of rules constitutes an amendment to statutory authority,” Brenda Erickson with the National Conference of State Legislatures told The Associated Press. “Therefore, to be constitutional, the Legislature’s veto of rules must be accomplished through passage by both houses with presentment to the executive.”

Legislative oversight also exists in other forms. Standing and special committees review the work of the state agencies, evaluate agency operations, review regulations, and perform audits. According to the NCSL, of the 41 states with some rule-review authority, 13 legislatures can also veto by statute, and 15 by resolution (as the Idaho Supreme Court approved in Mead). Of nine state ballot initiatives, only two others have succeeded so far.

Balance, while a moving target in an evolving democratic society, is a principle worth carefully pursuing. As the U.S. Supreme Court concluded, reserving legislative veto power over the party delegated to execute and administer the same law upsets that balance.

•••

Sholeh Patrick, J.D. is a columnist for the Hagadone News Network and a former state lobbyist. Contact her at Sholeh@cdapress.com.

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