Legislative approval of agency rule-making is constitutional, even when it temporarily leaves an agency without rules.
The Idaho Supreme Court unanimously found that rule-making authority in Idaho is delegated to agencies by the Legislature, regardless of whether that agency falls under the executive or legislative government organization chart.
“Because rulemaking authority is derived from the legislative delegation of authority, the legislature is free to modify the process by which administrative rules are enacted, i.e., the legislature is free to condition its delegation of rulemaking authority by requiring agencies to follow the processes outlined in the [Idaho Administrative Procedure Act],” the court wrote.
Case Background
The State Athletic Commission sued the Office of Administrative Rules Coordinator because a new law passed in 2023 (HB 206) made its rules unenforceable after the House State Affairs Committee ran out of time to set a hearing for the Commission’s proposed rules.
Without legislative pre-approval as required by the law, the Office of Administrative Rules Coordinator could not publish them. The State Athletic Commission argued that the situation left them with no legally enforceable rules, even though the law provides a process for the agency to adopt “temporary rules” through the governor until the Legislature can approve them. In fact, as the Supreme Court ruling points out, Governor Little has authorized such temporary rules in 2019, 2020, 2021, and 2022 after the Legislature failed to approve final rules contained in the Idaho Administrative Code.
Instead of requesting that the governor authorize temporary rules, the Athletic Commission filed a lawsuit to bring the constitutional question before the court.
The State Athletic Commission falls under the state’s executive branch and is granted rule-making authority under Idaho Code. Governor Little previously conveyed concerns about HB 206, which went into effect without his signature.
“Conditioning the enforceability of rules on legislative action runs afoul of constitutional separation of powers and threatens to undermine the negotiated rule making process,” Gov. Little wrote.
The Idaho Supreme Court disagreed.
Although the Idaho Legislature was not a party to the lawsuit, it was granted leave to intervene since the complaint claimed that the Legislature exceeded its authority by breaching the constitutional separation of powers between the legislative and executive branches. The Court would have been deprived of true adversarial argument had the Legislature remained uninvolved.
Among other things, the Commission raised the narrow question of whether Idaho’s Constitution permits the Legislature to review both final and pending agency rules, citing several states where legislative preapproval of administrative rules is unconstitutional. Unlike Idaho, in many states administrative rule-making is considered an executive function.
Although the Idaho Court sympathized with the Athletic Commission’s predicament, it held that such “out-of-state cases Petitioners rely on are based on jurisprudence that is directly at odds with the constitutional principles” already propounded by the Court. In summary, “the plain language of Article III, section 29 is unambiguous and permits the legislature to review both final and pending rules.”
Here is what Article 3, Section 29 of the Idaho state constitution says:
"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. After that review, the legislature may approve or reject, in whole or in part, any rule as provided by law. 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 review of agency rules protects citizens and improves democratic accountability
Citizens and businesses are subject to severe civil and sometimes criminal penalties for agency administrative rule violations. Agencies have the authority to discipline, fine, and even revoke business and professional licenses based on the rules they write. In some cases, the rules are so cumbersome and the consequences of violation so high, the agencies themselves will not assist citizens and businesses with interpreting their own rules because such assistance would be considered legal advice.
Complicated rule-making generates confusion. Agencies will often refuse to help the people they are tasked with regulating to comply with their own rules, instead directing them to hire legal counsel—a tacit admission of what’s at stake in proper compliance.
Unlike legislators, which are subject to regular elections and accountable directly to voters for the laws they pass, agency employees have no such accountability, although the rules they pass often carry the same force of law. In addition, agencies are often adversarial to the industries they are tasked with regulating.
Seeking to rectify this problem, the Idaho legislature proactively adopted HB 206 in 2023, requiring legislative pre-approval of administrative rules prior to their publication and enforceability. This process ensures that agencies stay within the bounds of their delegated authority and provides oversight to ensure onerous rules that would not pass the legislative process are excluded.
The Idaho Legislature is to be credited for its effort to ensure state agencies explain and justify their rules to the people who are accountable to voters. State agencies should not be permitted to behave like ‘mini-legislatures,’ generating hundreds of bureaucratic, industry-specific rules that carry the force of law with no supervision.
Legislative oversight of rules may be a burr in the saddle of state agencies, but it’s a necessary and commendable protective mechanism for Idaho citizens.