Bill Description: House Bill 941 would move the office of administrative rules coordinator from the division of financial management to the legislative services office. It would further eliminate the requirement for periodic review of all administrative rules.
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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?
The SoP states that “Administrative rules, while inferior to the authority of Idaho’s constitution and statutes, are considered to have the force of law. Therefore, the executive branch’s process of promulgating such rules are considered to be a delegation by the Legislature of its plenary lawmaking powers.”
Legislative power cannot be delegated or exercised by the executive power.
ARTICLE II, SECTION I. DEPARTMENTS OF GOVERNMENT:
The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.
Insofar as administrative agencies write rules, they should only be considered advisory drafts.
Hence, Idaho Code § 67-5201(12) states that:
“Final rule” means a rule that has been approved by the legislature and is in effect.
A rule cannot have the force of law without legislative approval (besides temporary exceptions due to the nature of Idaho having a part time legislature).
This is because Idaho Code 67-5291 states (of IDAPA):
LEGISLATIVE REVIEW OF RULES. (1) A standing committee of the legislature shall review any temporary, pending, or final rule that is germane to its committee and has been published in the bulletin or in the administrative code to determine if the rule is consistent with the legislative intent of the statute that the rule was written to interpret, prescribe, implement, or enforce. If a reviewed rule is approved, the standing committee that approves the rule shall report its findings and recommendations to the body. If ordered by the presiding officer, the committee’s report shall be printed in the journal.
And:
(2)(a) All temporary, pending, and final rules of any nature may be approved or rejected by a concurrent resolution of the legislature. The concurrent resolution shall state the effective date of the approval or rejection.
As well as:
(6) On and after January 1, 2024, pending fee and non-fee rules shall become effective on July 1 in the year of the legislative session in which the rule was approved by concurrent resolution unless otherwise specified in the concurrent resolution.
All of which derive their authority from:
ARTICLE III, 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.
Rules can only have legal effect by way of positive legislative approval. For all intents and purposes they are laws, just ones drafted by an agency.
Note: The reason approval is need not be subject to veto, is the fact that the veto power is actually an explicit grant of legislative power to the governor, not an inherent power of the executive.
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The SoP states “This legislation reclaims a portion of this delegation by transferring the Administrative Rules Coordinator position and function from the executive branch’s Division of Financial Management to the legislative branch’s Legislative Services Office.”
Moving the Administrative Rules Coordinator (ARC) position and functions to the Legislative Services Office is a positive step towards consolidating all the lawmaking into the legislative branch. As LSO drafts legislation for legislators (and nobody contends that LSO drafters promulgate law. And by the same logic agency rule drafters do not), the ACR can be considered a rough equivalent for administrative rules. Note neither promulgate law, only the legislature by its vote can enact law.
The head of the ARC will serve at the pleasure of the head of the LSO, and the LSO chief serves at the pleasure of the legislature. This gives the body (for the most part) direct control over the position. It also empowers the ARC to change both proposed and existing rules prior to publication pursuant to section 67-5203. They were previously limited to correcting “manifest typographic or grammatical errors” that do not alter the sense of the rule. While operations in practice should follow this precedent, they are technically no longer bound to do so.
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The third section repeals 67-5292, which requires the review of all administrative rules on a periodic basis starting in 2026 on an eight year cycle. Because all rule changes and all new rules must be reviewed, this doesn’t inherently bring up any delegation problems. However, legislative review of rules is important. Further, Section 67-5292 had other reporting requirements and directed the agency to determine whether rules could be codified. Affirmative codified legislation, all else being equal, is still superior to rules and in better keeping with our tradition of self-government.
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