Constitutional amendment cements our system of checks and balances

Wayne Hoffman Weekly Column

When the EPA announced this summer that it was putting in place regulations that would stretch its authority over wide swaths of private property, much of the country was in an uproar. The EPA said that dry streambeds that only occasionally flow with water, small ponds and watering holes should be regulated as “navigable waters of the U.S.,” subjecting them to the Clean Water Act.

Imaginative and outrageous as these regulations are, Congress is unable to tell the EPA to pound sand. Regulations passed by federal agencies—from the EPA to the IRS to the Department of Health and Human Services—cannot be reviewed and rejected by Congress even if those regulations stretch beyond statutory limits.

This is, thankfully, not the case in Idaho. If our state Department of Environmental Quality were to pass a rule that stretches the agency’s authority, the Legislature can reject it, and the Legislature often does exactly that.

Our state Legislature’s process for reviewing agency regulations, approving or rejecting them are at the heart of the constitutional amendment that is on the ballot in November. The amendment seeks to cement in the Idaho Constitution a legislative review process that has been underway for decades.

Critics of the amendment, some of my friends included, suggest that the amendment is poorly worded and that it gives too much power to the legislative branch. That’s up to voters to figure out. The complete text of the amendment, a mere 60 words, appears on the ballot.

For me, the amendment seems to strike a balance between executive branch authority and legislative branch authority. Executive branch agencies can and do write regulations; the Legislature reviews those regulations in public hearings where ordinary citizens can comment on the proposals.

Critics of the amendment also sound an alarm stemming from the Legislature’s vote last winter to remove from state law a provision that allows the Legislature to not only reject regulations but to amend and rewrite them. This is easily explained. More than two decades ago, when a court ruled that lawmakers have the authority to review agency rules, the court also opined that allowing the Legislature to write executive branch regulations probably violates our sacred principle that the work of the executive branch should be separate from that of the legislative branch. That’s why for many years the Legislature has merely accepted or rejected, in whole, agency rules. And that’s why the statute was amended this year.

Critics also say agencies shouldn’t be writing regulations at all, that all details should be written out by lawmakers in statute. I wish that were true. But we know that if agencies had no reviewable regulations, agencies would still find a way around lawmakers. Their ministerial and administrative duties would be relegated to policy manuals and directives written outside the light of day, without legislative oversight and without public discourse.
Despite my belief in Idaho’s legislative oversight process, I concede that state lawmakers occasionally write statutes that are too vague, unnecessarily letting agencies use regulations to fill in important details. This is an ongoing problem that requires constant vigilance.

Still, I’ve been watching our state Legislature for almost 20 years, and I can tell you that our lawmakers’ regulation review process, were it in place in Congress, would make our country safer from renegade government agencies or power-hungry bureaucrats. And that’s why Idaho lawmakers have asked voters to safeguard this practice by writing it into the Idaho Constitution.