Over the past century, political progressives have built a bureaucratic machine with the goal of undermining our republic. It accomplishes this by making people dependent on government programs and by ignoring the will of the people and their elected representatives, ruling solely through executive fiat. Idaho has long been at the forefront of the battle against this bureaucracy, or what is formally called the administrative state. The 2026 fight to end the Idaho Child Care Program (ICCP) is a continuation of that battle. However, during this session, the Attorney General’s (AG’s) office took a step backward in this fight when it sided with the Department of Health and Welfare (DHW) in the battle against government-funded child care in Idaho.
Background:
Before the 2026 session began in Idaho, there were riots in Minnesota. The confrontation in that state began over a reporter’s (Nick Shirley) discovery of how dozens of daycares were fraudulently stealing state and federal tax dollars. Similarly, these same programs also exist in Idaho (called the Idaho Child Care Program, or ICCP), mainly funded by the Child Care and Development Fund (CCDF), created by federal legislation passed in the early 1990s. Further, this program was found not to exist in statute and was instead created originally under the Idaho Office for Children in 1992. In 1997, the ICCP was moved under the DHW, which promulgated the rules governing the program (IDAPA 16.06.12) via the general rulemaking authority of the agency. This means that, in practice, the DHW was running an unauthorized and potentially fraudulent “childcare” program to the tune of $70 million annually. The Legislature never passed a law enabling this program, yet it has been in operation for more than three decades.
As the Idaho Freedom Foundation (IFF) and other entities were waiting for FOIA requests to be returned (which were slow-walked for several months), the session began. By March, the immediate uproar over the Idaho Child Care Program had subsided and early in that month a maintenance budget implicitly authorizing funding at current levels passed out of committee with little opposition. The continued funding of the ICCP was part of this maintenance package (Senate Bill 1375), as well as an FY26 program expansion of $14,000,000 via new federal grants. Later in March, enhancement legislation for early learning and development (Senate Bill 1428) was advanced out of committee, with a further $16,000,000 in expanded funding for the ICCP in FY27. Senate Bill 1375 ended up failing in the House of Representatives due to the massive expansion in Medicaid spending it authorized, a separate but related issue.
Parallel to these developments, the director of the DHW sent a letter to the Joint Finance and Appropriations Committee (JFAC) on March 9 stating:
“[the ICCP] has been administered via administrative rules and budget intent language. A program of this size and magnitude without a clearly defined statute is untenable. Further, DHW has determined that the authority in code we have historically relied upon for rulemaking is insufficient to sustain any of the ICCP rules.”
This was an acknowledgment of the obvious fact that this program is unauthorized, most likely unlawful, and potentially unconstitutional.
However, rather than taking steps to end the unlawful program, the DHW director instead produced legislation intended to codify it in law, thus rendering the legal question moot. The first version of this legislation was Senate Bill 1374, followed by an updated version, Senate Bill 1419. Instead of taking the opportunity to end a government-funded and created, fraud-riddled welfare program, the DHW doubled down on protecting the ICCP. Once this bill was introduced, momentum to stop the expansion and codification of the ICCP picked up steam.
New language in the HHS maintenance budget (Senate Bill 1435), the replacement for the failed Senate Bill 1375, seemed like it would solve the issue. The bill removed the authority to spend the capacity expansion grants and included language requesting that, in cases “where the department cannot explain how an identified rule section expressly fulfills a duty outlined in Section 56-202…” they must either update the rule to reflect the proper section of Idaho code or begin “b) steps to repeal the rule section.” Further, when a rule section is identified as needing to be repealed, “the department shall not expend any appropriation in the exercise of the rule.”
The director’s own analysis, which found no authority for the ICCP in conjunction with this language, should have led to the end of this unauthorized program. However, this was not to be.
Analysis of the AG’s ICCP opinion:
Senators Brian Lenney and Josh Keyser had requested an analysis from the Office of the Attorney General regarding the DHW’s statutory authority to continue to administer the ICCP. Around the same time as S1435’s introduction, the analysis was received. The AG’s office concluded that “DHW has sufficient legal authority to continue operating ICCP.” This is shocking, to say the least. A program not found anywhere in statute was said to be lawful. This is the epitome of rule by bureaucrats rather than by our representatives. This analysis not only authorizes rule by decree but also runs counter to the basic foundations of the Constitution: that we are a republic of laws, not men.
The AG’s office found three reasons that the DHW has legal authority to operate the ICCP. These are:
“(1) the general rulemaking and public assistance authority in Idaho Code § 56-202, which encompasses ICCP under the statutory definitions of “public assistance” and “social services”; (2) the federal grant authority in Idaho Code §§ 56-203 and 561003; and (3) the Legislature’s repeated annual appropriation of ICCP funds, which reflects affirmative and ongoing legislative endorsement of the program.”
A brief analysis of each of these legal arguments juxtaposed with basic constitutional arguments should be enough to disprove them. The full explanation from the director of DHW states:
“For years DHW has relied on general rulemaking authority vested in the Director at I.C. § 56-202, which states in relevant part that “[t]he director of the state department of health and welfare shall…[p]romulgate, adopt and enforce such rules and such methods of administration as may be necessary or proper to carry out the provisions of title 56, Idaho Code.” As the child care subsidy program is not found anywhere in Title 56, nor another title in Idaho Code, there is no authority to promulgate rules under this section. We can find no alternative rulemaking authority in law to sustain these rules.”
The director goes on to proclaim that the DHW will have “no choice but to eliminate the rules and wind down ICCP…” without the proposed legislation. The AG’s office begins by stating that IDAPA (Idaho Administrative Procedures Act) 16.06.12 is the administrative code governing the ICCP and that this code identifies “Idaho Code § 56-202 as the legal authority for the ICCP rules.” This is the general rulemaking authority of the DHW, which states the DHW shall “Administer public assistance and social services to eligible people…” and “promulgate, adopt and enforce such rules and methods of administration as may be necessary or proper to carry out the provisions of title 56…”
The legal opinion continues by asking whether this section of Idaho Code authorizes the ICCP by referencing the definitions of “Social Services” and “Public Assistance.” Social services are defined as “activities of the department in efforts to bring about economic, social and vocational adjustment of families and persons.” Public assistance “includes general assistance, old-age assistance, aid to the blind, assistance to families with children, aid to the disabled, and medical assistance.”
The AG highlights that “assistance to families with children” is the relevant text which authorizes the ICCP. But examine the full definition. What doesn’t it authorize? Apparently, the DHW can do anything “to bring about economic, social and vocational adjustment…” as well as provide “general assistance.” These can’t be properly defined. Almost anything can bring about “economic adjustment” or provide “general assistance.”
In a republic, legislators must write clear and unambiguous laws.
Article II, Section 1 of the Idaho Constitution states:
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.
This is one of the strongest statements of the nondelegation doctrine found in any state constitution, which flows from the idea that our legislators must write our laws. The Legislature cannot pawn off its power to write laws to DHW. However, by writing laws and definitions so vague as to be able to be construed as authorizing any program, the Legislature violates what the United States Supreme Court calls the Intelligible Principle Doctrine (J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928)). If you were to ask any person what “general assistance” or “economic adjustment” authorizes, they would be unable to give a clear answer due to the generality of the phrasing, meaning there is no intelligible principle, so the law should be considered void. Much the same principle is found in Idaho Supreme Court precedent, where the governing principle is whether the statute lacks “standards, guidelines, restrictions or qualifications of any sort place in the delegating legislation.” (Greater Boise Auditorium Dist. v. Royal Inn of Boise, 106 Idaho 884, 886, 684 P.2d 286, 288 (1984))
It is true that this doctrine has been distorted at all levels of government to authorize entities like the ICCP, but Idaho’s AG should not be following suit and uncritically allowing progressive innovations to distort our state government. This opinion moves Idaho further away from the representative government it proclaims to support and the principles of the founding it professes to love. In a state with some of the strongest protections against rulemaking by decree (found in IDAPA), this AG opinion is a serious black mark on the state’s record.
Be ready for other state agencies to follow DHW’s lead and begin all kinds of programs via administrative rules rather than the proper channel of statutory law. The AG’s flawed opinion means the barn door has been propped open.
The second legal defense offered by the AG’s office is as follows:
“Idaho Code § 56-1003(4) authorizes the DHW Director, when designated by the Governor or through the standard legislative appropriations process, to “apply for, receive on behalf of the state, and utilize any federal aid, grants, gifts, or moneys made available through the federal government.” Idaho Code § 56-1004 provides additional broad authority along these lines. Because ICCP is substantially funded by federal dollars, this grant-acceptance and utilization authority provides a second, independent statutory basis for DHW’s operation of the program — one that does not depend on whether ICCP is expressly named in Title 56.”
Yet any federal grant they may apply for and receive must still fulfill a lawful duty of the department, and we have just demonstrated that the enabling statute is so vague as to violate the nondelegation doctrine, rendering this defense null. But even disregarding this point, there is another pertinent section of the Constitution of Idaho to consider.
Article VII, Section 13 of the Idaho Constitution:
Money — HOW DRAWN FROM TREASURY. No money shall be drawn from the treasury, but in pursuance of appropriations made by law.
This program is not authorized by law. It is only authorized by administrative fiat. The power of the purse is the first and foremost faculty of the Legislature. This power is rightly entrusted to the representatives of the people alone. To allow it, under any circumstances, to be exercised without appropriations made by law is diametrically opposed to any conception of self-government and intolerable to a free people.
Agencies should not be able to take federal grant money and establish a set of rules to govern its distribution, even if the Legislature later has a say in whether the program continues or not. The Legislature writes the law; it doesn’t approve programs by tacitly supporting them after the fact in any healthy republic. This brings us to the final legal defense offered: the legislature’s repeated appropriation of funds to the ICCP confirms legislative approval.
There are several problems with this defense. First, even if the Legislature tacitly approves of a program by authorizing its funding, it still hasn’t written the rules (laws) that govern the program. It is still derelict in its duty. Thanks to IDAPA section 67-5291(2)(a): “All temporary, pending, and final rules of any nature may be approved or rejected by a concurrent resolution of the legislature.” These administrative rules were not approved by the full legislature, and therefore ought not to have the force of law. IDAPA rightfully acknowledges that administrative rules have the force of law and therefore require legislative approval before they can take effect.
Before July 1, 2023, if a rule was not rejected, it was automatically approved. This represents tacit approval only. After this date, all rules required affirmative approval. It appears IDAPA 16.06.12 has never been approved in its entirety under this new requirement. Further, under the old requirements, the only time the full Legislature approved a rule was when it changed a fee. This happened several times throughout the history of the ICCP. Still, it seems the full rule set governing the program has never been approved by the entire legislative body and, under our system of government, should not have the force of law.
Second, we should demand more from our legal system and our legislators, rather than accepting the tacit approval of rules as a basis for free government, which is an untenable and unconstitutional system. This should be made clear as we recount the end of the ICCP saga.
Senate Bill 1419, codifying the ICCP, was defeated on the floor of the Senate after a major push by conservatives and IFF to stop the legislation. Once this program was codified, it would be almost impossible to repeal. The marketing of S1419 was that there were to be new protections against fraud, but, as we demonstrated, the agency could simply write these regulations itself, given that the AG’s opinion gives it nearly unlimited authority to do so. In fact, we should rather ask why this was not done long ago.
The real importance of stopping S1419 lies in Article III, Section 29 of the Idaho Constitution, which states:
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.
There exists now a real opportunity that the ICCP can be fully repealed by a simple majority vote in the Legislature, and it cannot be vetoed by the governor, because the ICCP continues to be governed solely by administrative rules. Instead of codifying a potential fraud ring, legislators have the chance to end it next session.
In tandem with the defeat of S1419, budget enhancement bill S1428 was also recalled to committee, and all $30,000,000 in capacity expansion for the ICCP was stripped from that legislation. The ICCP — essentially a taxpayer-subsidized welfare program potentially riddled with fraud — has been dealt a serious blow.
We also must ask: if a bill to codify the program was rejected and part of its funding was stripped, does the Legislature really “approve” of the program? This is why relying on tacit or implicit legislative approval is an untenable and unconstitutional doctrine. If the legislature wants a program, it should be required to affirmatively pass a law to establish it. This is the bare minimum our republican form of government demands, and the AG’s opinion on the ICCP did an unfortunate disservice to the state of Idaho and its constitutional values.
