Writings and observations

No difference at all

idaho RANDY
STAPILUS
 
Idaho

A reader points out that Idaho voters next month will decide whether to pass an amendment to the state constitution, and “The only info I have is in the “Idaho Voters’ Pamphlet” and it’s not enough”: She requests some guidance.

Okay: On this one, you can feel comfortable throwing a dart blindfolded at your ballot. Whether you pass it or fail it, it will make no difference whatsoever, not to Idaho voters, their government, or anything else. When I read that one of its main floor backers, Senator Curt McKenzie of Nampa, said it was among most significant pieces of legislation he’d dealt with, I hoped that his legislative career has amounted to more than that.

What House Joint Resolution 2, which passed both chambers with not a single vote opposed, does say is that the Legislature can authorize and holds final effective approval power over all agency rules and regulations. That would be significant if the legislature already had not been doing that. Legislatures take varying roles in dealing with agency regulations, but the Idaho Legislature has been overseeing and accepting and rejecting rules for decades – to my knowledge at least since the 70s, and probably long before that.

For many years, the legislature gave the rules a quick look, maybe throwing out two or three controversial ones in a normal session. Since the mid-90s, it has been applying a microscope to them, spending the first quarter or so of each session hunkered down over not legislation but administrative rules to decide whether they will stay there, or should be kicked out, or amended. Some studies have concluded that the Idaho Legislature has, for a couple of decades, had more power over and more closely reviewed the rules than any other legislature in the country.

So what is the new proposed amendment intended to accomplish? Basically, to allow the system Idaho has had for a couple of decades to stay in place.

Is there any reason to think it won’t? Legislative backers point out a couple of challenges to legislative rule approval at the Idaho Supreme Court; but the court has each time upheld the legislature. That’s too much locked-in precedent for such a change to happen easily.

But even if it did, the practical difference would be, as a lawyer would say, de minimis. Administrative rules can be set up only within the terms of state law, so the legislature sets the parameters to start with. If the rules color outside the lines, they can be challenged and thrown out in court. Legislators can also change state law as they please to rein in regulatory ideas they don’t like or impose those they do; there’s not a lot of limit on how specific law can be. (Laws can be held unconstitutional for vagueness but generally not for specificity.) Legislators also hold the power of the purse, and can (and often do) include statements specifically describing what money cannot be used for, or must be used for – which amounts to sweeping control of what an agency does. A legislator might argue that a governor can veto a bill, even a budget bill; but two-thirds of the legislature can override vetoes.

In an opinion article against the amendment Jack McMahon, a former chief deputy attorney general with deep background in how state government works, also points out that “the Legislature has inserted a ‘poison pill’ in the law making it virtually impossible to take away its power to review agency rules. The power is said to be so ‘critical and integral’ that if it is ever struck down, every agency rule adopted in the last quarter-century ‘shall be deemed null, void and of no further force and effect’.”

Given all this, the idea of administrative rules running riot over a helpless Idaho Legislature begins to sound almost a little paranoid.

So vote for it or vote against it and either way worry about it not at all. Fret if you will over your vote for irrigation company or sewer district; that may matter a lot more.

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