Bill Description: House Bill 539 would amend statute 67-5226, part of the Idaho Administrative Procedure Act (IDAPA). This legislation would require agencies that promulgate temporary rules only be able to do so in certain defined circumstances. It also would subject them to additional review and reporting requirements.

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Does it violate the spirit or the letter of either the United States Constitution or the Idaho Constitution? Examples include restrictions on speech, public assembly, the press, privacy, private property, or firearms. Conversely, does it restore or uphold the protections guaranteed in the US Constitution or the Idaho Constitution?

House Bill 539 proposes to amend IDAPA by limiting agencies’ ability to promulgate temporary rules that have not been approved by the legislature. The bill contains language that would strengthen the requirements for using temporary rules, especially during a public health emergency. Further, the governor would be required to issue a written statement explaining why the temporary rule is required. If a temporary rule imposes a fee, the governor must explain why the charge is necessary to “avoid immediate danger.”

The proposed changes also include certain provisions that protect and uphold the Constitution and the rights of citizens. The bill states that an “agency may not adopt the same rule or a substantially similar rule as the temporary rule again” unless certain restrictive criteria are met, or 90 days have elapsed since the expiration of the rule. 

The Idaho and U.S. constitutions both recognize that the power to write and promulgate law lay solely with the elected representatives in the legislative branch. The necessary character of a free people is undermined when they are ruled by fiat and decree. House Bill 539 upholds both the U.S. and Idaho constitutions by restricting the ability of agencies to write rules that have the force of law without legislative approval as well as limiting administrative rule by decree.

Additionally, the bill would create a mechanism for aggrieved parties to challenge temporary rules. It provides judicial review as a remedy by stating “A person aggrieved by a promulgating agency’s adoption of a temporary rule may challenge such agency action as a final agency action…” Another fundamental right of Idahoans is the ability to bring grievances before a court of law and be provided a fair and speedy resolution before an impartial judge or jury.

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