Idaho Gov. Butch Otter is urging a “no” vote on HJR 5, the constitutional amendment on the November ballot, and he’s added a new twist to the debate: Otter says a clause in the amendment that says “in whole or in part” actually would vastly expand the Legislature’s current power to review administrative rules, rather than simply writing that current power into the state Constitution.
“I’d call it unnecessary but its potential consequences are more serious than that implies,” Otter writes in a guest opinion; you can read the full piece here.
Under current law, lawmakers review administrative rules at the start of their legislative session each year, and either approve or reject them.
“But HJR 5 would go further,” Otter writes, “embedding in the Idaho Constitution a legislative practice that can be found nowhere in existing law. The amendment would give lawmakers additional authority to reject rules ‘in whole or in part’ – essentially creating a lawmaking process in which the governor is constitutionally barred from vetoing the result. For example, the governor could do nothing if the Legislature unilaterally altered the basic intent of an agency’s rule simply by changing its language ‘in part’ from ‘the department shall not’ to ‘the department shall’ take a particular action.”
That same “in whole or in part” language appeared in the 2014 version of the constitutional amendment, HJR 2, which Idaho voters rejected; it went unremarked on at the time.
The Idaho Administrative Procedure Act lays out in detail how agency rules are enacted, including the legislative review process that’s detailed in Section 67-5291 of Idaho Code. There’s no mention in the current law of “in whole or in part.”
Otter writes, “Continuous bickering and name calling at the top of the ticket in this election year are understandably creating a lot of anxiety among voters. So there’s no need for anyone to add to that angst by frightening folks about the Idaho Legislature having too little authority to protect them from government bureaucrats run amok. Yet that is precisely what advocates of HJR 5 on the Nov. 8th ballot are doing. They should get no more support in their effort this year than they did two years ago when Idaho voters rejected the same idea.”