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HJR5 a solution in search of a problem |
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October 28, 2016 |
By Idaho Governor C.L. “Butch” Otter
 Continuous
bickering and name calling at the top of the
ticket in this election year are understandably
creating a lot of anxiety among voters. So
there’s no need for anyone to add to that angst
by frightening folks about the Idaho Legislature
having too little authority to protect them from
government bureaucrats run amok.
Yet that is precisely what advocates of HJR 5 on
the November 8 ballot are doing. They should get
no more support in their effort this year than
they did two years ago when Idaho voters
rejected the same idea – putting into the Idaho
Constitution what already is the law of the
land.
When it first emerged last spring, my initial
impression was that it wasn’t a bad idea. After
all, everyone wants government to be more
accountable, right? But after considering it
further, my conclusion is that HJR 5 is about as
good an example as you will ever find of a
solution desperately in search of a problem. I’d
call it unnecessary but its potential
consequences are more serious than that implies.
The Idaho Supreme Court decided in 1990 that
legislators have the authority to reject rules
from Executive agencies that they believe are
inconsistent with the legislative intent of the
law behind the rule. The review process
dominates the opening weeks of each annual
legislative session.
But HJR 5 would go further, embedding in the
Idaho Constitution a legislative practice that
can be found nowhere in existing law. The
amendment would give lawmakers additional
authority to reject rules “in whole or in part”
– essentially creating a lawmaking process in
which the governor is constitutionally barred
from vetoing the result. For example, the
governor could do nothing if the Legislature
unilaterally altered the basic intent of an
agency’s rule simply by changing its language
“in part” from “the department shall not” to
“the department shall” take a particular action.
That fundamentally changes the dynamic of
legislative review and is a serious breach of
the balance and separation of powers between the
Legislative, Executive and Judicial branches – a
hallmark of our form of government. Forget about
“checks and balances.” By taking a
belt-and-suspenders approach to the rules review
process, HJR 5 would disenfranchise the other
branches and make the Legislature Idaho’s
preeminent government organ.
I want to make it clear that I have no problem
with the Legislature’s rules review process as
it now exists in statute. It is designed to
protect Idaho citizens from what HJR 5
proponents contend are the threats of rules that
undermine legislative intent and bureaucrats
imposing unreasonable regulations – shortcomings
more accurately attributed to the federal
government. Not satisfied with the existing
guarantees that legislative intent will be
protected in rules, HJR 5 backers now are
seeking constitutional protection against the
existing law and court precedent somehow being
overturned.
That prospect seems pretty dim 26 years after
the court upheld the constitutionality of
legislative rules review. And the price for
reassuring concerned legislators of their
authority in the event of some future court
challenge could be endless opportunities for
mischief. It could mean opening the door for
self-serving interests to further assert their
influence in the process and running the
legitimate risk of needlessly extending annual
legislative sessions.
Does any of that sound good to you? Does anyone
want a single branch of government writing the
laws and developing the rules for how those laws
are implemented with no check on its authority?
If not, I encourage you to join me in voting NO
on HJR 5 on November 8. |
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