Date: October 14, 2014

by Arthur B. Macomber, Attorney

On November 4, 2014 Idahoans will vote on the addition of a Constitutional amendment to affirm the legislature’s power to nullify or veto executive branch rules. A legislative veto is a good idea. Idaho’s Constitution is a precious protector of our liberties, because it limits the sovereign power of the state to that which we the people approve. The separation of powers is a critical function of that protection, because it divides government to prevent tyrannical accrual of power in one branch.

Unfortunately, the amendment must be rejected, because it is not being presented properly to the voters, and it uses sloppy language. Better language is available, and the Constitution should not be trifled with to address transient inter-branch friction. The Idaho Legislature must do better.

When the Secretary of State sent the Idaho Voters’ Pamphlet, the mailing did not include the actual language of the proposed amendment. This is avoidable error, and makes one suspicious about why public discussion was discouraged by hiding the ball. Idaho citizens deserve adequate time to assess the legislative proposal.

Section 1 of Article XX of the Idaho Constitution requires the legislature’s proposed amendments to be submitted “to the electors of the state at the next general election, and cause the same to be published without delay for at least three times in every newspaper qualified to publish legal notices as provided by law.”

Submitting the amendment to the electors “at the next general election” only means voters show up in the voting booth to see the amendment for the first time. This is impractical, and should not constitute proper notice, especially when the Secretary of State could have added the proposed amendment to its mailer. The State Supreme Court’s opinion is that, “statutory or Constitutional provisions cannot be read in isolation, but must be interpreted in the context of the entire document.” A voter cannot assess the impact of an amendment in light of the entire document while standing in the voting booth, so rejection is the best voter response.

Substantively, the amendment uses sloppy language. The first sentence states, “[t]he legislature may delegate rulemaking authority to executive agencies as provided by law.” We have co-equal branches of government, but the amendment characterizes the legislature as being in a principal-agent relationship to the executive branch. Since the legislature does not have rulemaking authority itself, it cannot delegate what it lacks to the executive.

In 1990, the Idaho State Supreme Court affirmed in Mead v. Arnell that a legislative veto exists in Idaho. The Mead case unfortunately used language from older cases that caused some readers to interpret it to mean the executive’s power to create rules for the enforcement of statutes is dependent on the legislature’s delegation of rulemaking authority to that executive. Language from the Mead case is fueling the legislative fire of H.J.R. 2. This interpretive error resulted in the proposed amendment that we should reject.

While the legislature’s creation of a bill with general language may impliedly require the executive to create specific rules for enforcement, this does not mean the legislature is delegating rulemaking authority. Among co-equal branches, if the executive believes statutory enforcement requires a rule, the executive has inherent power to create it. Without inherent executive power to create rules, the legislature could simply not delegate and eviscerate core executive power. The Mead case should not be interpreted to support the proposition that the executive only gets rulemaking power by legislative delegation, because this would dangerously upset the balance of co-equal branch power. Therefore, the first sentence of the proposed amendment requires its rejection.

Rejection is encouraged by the second sentence too. It states, “no rule shall supersede the legislature’s authority under this Constitution.” Who said any rule could? The sentence implies two existing Idaho Constitutional provisions have been nullified. The first provision is in section 1 of Article III, which puts all the legislative power “in a Senate and House of Representatives.” According to Mead, executive rules “do not rise to the level of statutory law” and “only the legislature has the power to make law.” An executive rule cannot “supersede the legislature’s authority,” because the exercise of executive power has no effect on legislative authority. In our State republic, only the Idaho Constitution limits legislative authority.

The second misunderstood provision is in section 5 of Article IV that states, “the supreme executive power of the state is vested in the governor, who shall see that the laws are faithfully executed.” While the executive branch may treat its rules as if they are the law, the Mead case says they are not. The idea that an executive branch rule could supersede the legislature’s authority is absurd. Simply because two branches cannot cooperate does not mean the voters of Idaho need to restate existing Constitutional provisions. H.J.R. 2 is bad Constitutional law.

Finally, the third sentence allows the legislature to “approve or reject, in whole or in part, administrative rules as provided by law without compliance with section 10, Article IV of the [Idaho] Constitution.” Section 10 of Article IV addresses executive veto power over a submitted bill, and the legislative power to override the governor’s veto with a certain percentage of affirmative votes. Since administrative rules are not law, voters should not grant the legislature authority to not comply with Constitutional provisions related to the making of law. H.J.R. 2 mixes apples with oranges, and voters should reject it.

An amendment to embed the legislative veto in the Idaho Constitution would affirm the legislature’s power to veto executive branch rules by concurrent House and Senate resolution by a certain percentage of affirmative majority vote. Such clear language is not before the voters in November, and the proposed amendment should be rejected at the polls.

— END —