Amendment Number and Question

H.J.R. 5

“Shall Article III, of the Constitution of the State of Idaho be amended by the addition of a new Section 29, to provide that 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; to provide that, after review, the Legislature may approve or reject, in whole or in part, any rule as provided by law; and to provide that 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?”

Legislative Council’s Meaning, Purpose, and Result to Be Accomplished

The Legislature writes the laws of the state under which the state agencies adopt agency rules. By statute, agencies make rules that only interpret and implement these laws, and the legislature reserves the authority to review and reject agency rules if a rule is contrary to the intent of the law.

The Legislature's ability to approve or reject agency rules is an important aspect of the separation of powers, because these rules have the force and effect of law. The Legislature currently oversees that rulemaking process by accepting or rejecting agency rules. The proposed amendment confirms and protects the Legislature’s practice to authorize agency rulemaking, and to accept or reject agency rules.

Statements FOR the Proposed Amendment

• The proposed constitutional amendment safeguards the ability of the legislature - elected by the people - to review and reject agency rules created by unelected state officials if those rules conflict with legislative intent. This will protect Idahoans from unfair or over regulation.
• The legislature's current ability to review agency rules is in the law. Idaho's Supreme Court previously held that statute valid, a future supreme court could potentially declare it invalid, because Idaho's Constitution does not expressly recognize the ability of the legislature to review agency rules. The proposed constitutional amendment would protect the legislature's authority to ensure that agency rules conform with legislative intent.
• If a future court determined the legislature did not have the right to review and reject agency rules, then Idahoans would have to hire lawyers and file lawsuits to challenge agencies' rules. That would be a much more expensive and time-consuming process than the current system which this amendment proposes to protect.
• A Governor's veto is not required, because agency rules are proposed by the Governor's departments and agencies.

Statements AGAINST the Proposed Amendment

• This constitutional amendment is unnecessary because the legislature already has legal authority to review agency rules. Even if the legislature did not have this authority, sufficient methods of challenging agency rules exist: the legislature can pass a law limiting an executive agency's rulemaking ability, or a rule can be challenged in court.
• The legislature is overly involved with state agencies when it examines their rules to see whether they conform to legislative intent, and that practice should not be in Idaho's Constitution. Legislative review of agency rules is time-consuming and makes it more difficult for state agencies to conduct day-to-day business.
• The legislature responds to agency rules in different ways. One way is to pass a bill, which it does every year to extend the agency rules from previous years. The proposed constitutional amendment would prohibit any veto of a rule approval or rejection and would infringe on the Governor's right to veto bills under the Idaho Constitution.