Rule review adds unique aspect to session

| January 26, 2020 1:00 AM

At the risk of being redundant, I am going to venture into a topic that I believe my colleagues have touched upon as well in their previous “Notes from Boise” columns. In doing this, I am hopeful that my perspective will add to the overall knowledge of our legislative processes.

The start to this year’s session has been unique. Our regular process is for the Legislature to review all the rules pertaining to the laws passed that have been developed by the executive branch agencies. This year, due to both disagreement between the House and Senate, and the Governor’s Red Tape Reduction Act, we have the opportunity to review every rule ever promulgated in Idaho. This has led to an increased workload for legislative committees, but we are working through the new system, and most committees are completing the work sooner than expected. Normally, in election years, the session is a bit shorter, and, controversial topics have been avoided. This year appears as though we will break with that norm.

The driving factor in last year’s dispute between the House and the Senate pertains to how our procedure for approving, and rejecting, the rules created by the executive branch is implemented. Currently, approving a new rule only requires one body of the Legislature. Meaning, that if the Senate rejects a pending rule, and the House then approves the same rule, the rule will go into effect.

Throughout the years, many legislators have been through the process of diligently researching pending rules, discovering that some are against legislative intent, working with their colleagues to reject the pending rule in committee, only to have the germane committee on the other side of the rotunda approve the rule. The rule then, in effect, becomes law, and this is the crux of the matter.

In crafting law, the original intent of our Idaho Constitution is clear. A bi-cameral legislature made up of citizens elected from various districts throughout the state will meet, debate, and approve proposed law with the assent of a majority of both bodies. It is then the purview of the elected leader of the executive branch to determine whether, or not, the legislation conforms to their vision for the state. Although there have been aberrations to this law-making process placed in our Constitution, these procedures provided the greatest protection to the interests of all the citizens of the State.

A solid majority of the House of Representatives believes that the process of approving rules should mimic the process of making law. There are many permutations of how this could be accomplished but essentially the thought is to either have a single body rejection or a dual body approval of the rules. This would then reflect the difficult process we undergo in formulating statutory law.

There is also the perception that, when creating the rules, the executive branch is delving into the territory of the legislative branch. We do grant the agencies the ability to interpret legislative intent when we are not proscriptive enough in writing our bills, but often rules read as though the agencies are attempting to shape policy through the rules process which clearly deviates from their jurisdiction. The Senate’s defense of their stance is that it has been this way for nearly 60 years and why do we need to change now? They also posit that there is no rule that is not attached to a statutory law, and, therefore, there is no violation of the separation of powers. While these ideas have merit, there is still frustration within the House as to the current situation.

Both bodies are trying to find a solution that is amenable to each, but there is little agreement so far. If we are not able to arrive at a common conclusion, we very well could have a repeat of last year with all the rules expiring on June 30, and the Legislature again having to review all rules at the beginning of 2021.

Sage Dixon, R-Ponderay, represents Bonner and Boundary counties in the Idaho House of Representatives, District 1B. He can be reached at SDixon@house.idaho.gov.