Constitutional Amendment re: Idaho Administrative Procedure Act (IDAPA) Rules

In 2014, I reviewed and then editorialized against a proposed Constitutional Amendment authorizing the legislature to review, amend or repeal the Idaho Administrative Procedure Act (IDAPA) rules. I thought the language needed work.

In January 2016, I sent the following Constitutional Amendment and the accompanying explanation to Idaho Speaker of the House Scott Bedke at the suggestion of House Majority Leader Mike Moyle. After receiving no reply from Mr. Bedke due to his busy schedule, I submitted it to the Chairmen of the State Affairs Committees in the House and Senate.

On March 10, 2016, House Joint Resolution (HJR005) was introduced, and on March 14, 2016 after unanimous passage in the House was sent too the Senate.

Macomber Version:

SECTION 29. LEGISLATIVE RESPONSE TO ADMINISTRATIVE RULES. The legislature may review any administrative rule to assure it accords with the legislative intent of the statute such rule was written to enforce. After such review, the legislature may by concurrent resolution approve or reject, in whole or in part, any such rule, which shall take effect pursuant to law without executive department approval.

HJR005 Pending in the State Senate:

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.

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Seeing no material difference, I support HJR005.

Explanation of Macomber’s Proposed Constitutional Amendment:

Background: House Joint Resolution No. 2 was passed by the legislature in the 2014 Second Regular Session, however it failed to garner voter approval.

Discussion: Chapter 52 of title 67, Idaho Code is the Idaho Administrative Procedure Act. Legislative review of executive department rules is currently codified at Idaho Code section 67-5291. A constitutional amendment should be drafted simply, in plain language, and with an eye toward permanence. The amendment should bolster and affirm the separation of powers doctrines, and not mistake enacted laws with promulgated administrative rules.

By using the term “may,” the proposed amendment allows the legislature, but does not mandate it to review any administrative rule. The words “any administrative rule” means whether such a rule is temporary, proposed, or fully promulgated it is subject to review. The purpose of such review is “to assure it accords with the legislative intent of the statute such rule is written to enforce.” Neither statutes nor rules are perfect, thus the legislature’s job in review is merely to “assure it accords with the legislative intent” leading to the enactment of the statute. The language is appropriately general for a constitution, and allows for legislative discussion and negotiation. However, it is important to state the reason for the review, which is to evaluate the executive department’s rule in light of the statute, so it is clear review is not based on any other motive.

It is important to state that any action the legislature takes on an administrative rule is only taken after review. There is no mandate, but again the legislature “may by concurrent resolution approve or reject, in whole or in part, any such rule.” This language confirms the method of legislative action, and makes it clear that either approval or rejection may be done in whole or in part. This approach accords with existing statutes.

The effective date of such concurrent resolution will occur “pursuant to law,” which leaves the timing up to the legislature depending on the circumstances. Finally, since administrative rules are not laws in Idaho, there is no need to reference section 10, article 4 of the Idaho Constitution. Even so, the words “without executive department approval” are included, to affirm that the concurrent resolution and its effect on a given rule are sufficient to approve or reject a rule as resolved without any approvals needed from the rulemaking authority in the executive department.

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