Administrative rules amendment needs improvement before it resides in Idaho’s Constitution

For the second time in three years, a constitutional amendment is proposed to give the Idaho Legislature authority to review administrative rules by agencies in the executive branch.

We like that lawmakers have an opportunity to review, approve or reject agency rules that seem contrary to the intent of legislation. The thrust of House Joint Resolution 5 is not whether the rules are good or bad, but whether they are faithful to the intent of the legislation that spawns them. State regulations have the force of law. Therefore, state agencies are not free to make up whatever rules they like; those rules must fairly reflect the authority granted by the legislation. Otherwise, the agencies become mini-legislatures unaccountable to the electorate.

But we don’t like HJR 5 as written. Lawmakers already can challenge and remove these rules. HJR 5 would place the Legislature’s right to evaluate rules into the Idaho Constitution, where it would not be subject to judicial or gubernatorial challenge. That would be too difficult to undo.

In 1969, the Legislature passed what became Idaho Code 67-5291, giving lawmakers the right to question rules proposed by the executive and its agencies. We support that statute.

In 1990, that right to consider rules was challenged in Mead v. Arnell. The Idaho Supreme Court voted 3-2 to uphold the authority of the Legislature to veto administrative rules, with a resolution that does not require the governor’s signature. We are fine with that.

In 2014, a similar amendment was narrowly defeated by voters. Some people, including Idaho Attorney General Lawrence Wasden, consider it an affront to the last vote to even bring this proposed amendment up again.

“The Constitution is carefully crafted to ensure no branch holds unchecked power over the others,” Wasden wrote in a Guest Opinion published Oct. 7 in the Statesman. “Currently, through statutes and the case Mead v. Arnell, the Legislature already holds the power they want to constitutionalize.”

We see merit in arguments pro and con. But we are concerned that this amendment places this power permanently into the Constitution and consolidates power in the Legislature. Others believe the rule-making process has run amok and needs to be reined in. If this amendment doesn’t pass and the backers make a third run at it, they should consider amending and maintaining the governor’s veto authority over the Legislature’s rules review. The Legislature could always, if it wished, override the veto. Those are the checks and balances we know and like.

Regardless of the vote on HJR 5, it would be wise for the executive and legislative branches to be more vigilant and communicate as legislation is drawn up and rules are considered. Yes, there is a hearing process for reviewing rules, but earlier interactions might save the need for the Legislature to keep proposing such amendments.

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