In 2016 the Idaho Legislature passed House Joint Resolution (HJR) 5 which asked voters to codify in the state constitution the Legislature’s authority to approve or reject regulations promulgated in administrative rule. Voters approved the amendment in the 2016 November election.
“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,” the amendment says. “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.”
House Bill 1 makes amendments to Idaho Code 67-5291 to define what is meant by “in whole or in part” when approving or rejecting an administrative rule. The legislation says “part” of the rule is “a provision in a rule that is designated either numerically or alphabetically or the entirety of any new or amended language.”
One might argue the legislation could serve to prevent rules from being amended to thoroughly change their original intent. For example, a rule may be written to say one “shall not” perform a certain task. By striking the word “not,” the changed rule confers the opposite meaning of its original version. Therefore, this bill not only prevents legislation by rulemaking, it preserves separation of powers between executive and legislative branches.
On the other hand, this bill might also prevent rules that do not comply with statutory amendments from being undone. That would be achieved by combining well-supported and legislatively-consistent rules under the same “part” as a rule that does not have the same support and is inconsistent with statute.
IDAPA 08.08.02.76, for example, says “institutional privileges for the promotion of political candidates or for political activities, except for local, state or national education association elections” are a violation of education ethics standards. The first part of the rule is appropriate but the second is not. Under House Bill 1, the Legislature would be unable to simply reject the second half of this rule, even though doing so is consistent with statute. Knowing this, agencies might be careful to connect objectionable rules under a single “part” as defined. This would serve to undermine the Legislature’s ability to contain problem regulations.
A better approach than House Bill 1 would be to codify the language in the legislative intent of the bill. This would allow the legislature to amend parts of a rule so long as those parts convey a singular policy and the intent of the policy is not changed. The bill already attempts this by noting that “the Legislature does not have the authority to reject certain and select words or phrases that would alter the meaning or purpose of the entire rule.” However, this portion of the bill is in legislative intent and is possibly undermined by the codified portions of the bill.