Take Back the Power

Why unwinding administrative delegation is the battle of our time

Late last month, Rep. Dori Healey introduced House Bill 290 regarding required immunizations for schoolchildren and daycare attendees. The bill did not receive much attention until last weekend, when parents on social media raised concerns about what they perceived as new regulations regarding childhood vaccines.

Maria Nate, Idaho director for the State Freedom Caucus Network, voiced some of those concerns on Twitter over the weekend:

We need to kill this on the floor. I’m very frustrated this got through two conservative committees that just passed S1023. The sponsor is making it sound like it’s a simple “rules to statute” change, when it adds some very concerning language and vaccines.

Sen. Brian Lenney responded with a long post explaining why he thought H290 was a good bill:

H290 isn’t some sneaky bill that adds new language or new vaccines. Quite the opposite: it’s a chainsaw (see what I did there?) to the red tape. It deletes out the word "Required" from the headers and takes away the Department of Health & Welfare’s ability to tinker with the vaccine schedul[e].

The whole discussion is worth reading, and raises questions about the purpose of H290 and similar bills that move rules into statute. Should we support this effort?

In theory, Idaho has a part-time Legislature, with lawmakers coming to Boise in January and going home in April. In reality, however, we have a full-time lawmaking body — scores of them, in fact. The Executive Branch of Idaho’s government includes 189 departments, divisions, and agencies, many of which have rulemaking authority delegated by the Legislature. This authority is detailed in Title 67, Chapter 52 of Idaho Code, known as the Idaho Administrative Procedures Act (IDAPA).

Half a century ago, before he ran for president, Ronald Reagan explained the problem to Johnny Carson:

YouTuber CGP Grey succinctly explained how and why this delegation occurs in a video about the status of the penny:

Rules promulgated by these administrative agencies carry the force of law. New rules must be authorized by the Legislature each year, but temporary rules created between sessions are just as valid.

For example, the current text of Idaho Code 39-1118, which relates to immunization requirements for children attending licensed daycares, says:

The board shall promulgate appropriate rules for the enforcement of the required immunization program and specify reporting requirements of daycare facilities…

This is typical of legislation that delegates the details to administrative agencies. Rather than specifying the rules for enforcing immunizations, the Legislature gave that authority to the State Board of Health & Welfare. The seven voting members of the board are appointed by the governor, while the director of the Department of Health & Welfare sits on the board along with the chairs of the House and Senate Health & Welfare Committees.

The original purpose of delegating this rulemaking authority was to allow experts in various fields to handle the details rather than asking elected lawmakers to make those decisions. However, in doing so, the Legislature has relinquished the sole lawmaking authority granted to it by the people in the state constitution.

Article I, Section 2 of the Idaho Constitution says that the people are the ultimate sovereigns of this state:

All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform or abolish the same whenever they may deem it necessary; and no special privileges or immunities shall ever be granted that may not be altered, revoked, or repealed by the legislature.

Article II, Section 1 explains how that power is delegated:

The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.

The Legislature should not have given away its legislative authority to unelected bureaucrats, but it did. So now what?

Idaho lawmakers have begun a concerted effort to not only move many of the rules that have been promulgated by administrative agencies into code, but to remove the authority to create rules in the first place. Earlier this year, the Cicero Institute published a paper explaining why this is a laudable goal:

Instead of crafting detailed and clear legislation, state legislatures have delegated broad rulemaking authority to the unelected executive branch. The turning point on regulations will be when the legislative branch turns off the spigot of bills that delegate new authority to the executive. However, dismantling the administrative state must also include a strategic plan to untangle 50-100 years of regulations on the books. One particular mechanism of unwinding delegation could assuage concerns about the broad delegation of authority to regulatory agencies: well-established and change-infrequently, regulations that are suitable candidates to move to statute. Doing so provides the benefits of enhancing the stability of the regulatory environment, creating efficiencies that reduce overall regulatory volume, serving as a catalyst for broader policy reform, and saving on the overall cost of government. Further, it allows the legislature then to unwind delegations of regulatory authority either in whole or in part. Efforts to unwind delegation and move rules to statute can be agency-led or part of an overall regulatory reform strategy for a state–as recent legislation in Idaho has formalized.

H290 is one of ten bills that aim to move rules into statute, in addition to several others that revoke rulemaking authority from administrative agencies. The central focus of this effort can be found in House Bill 364, which would create a joint legislative committee to implement “DOGE” in Idaho government:

The DOGE task force may divide its work into three (3) subgroups to focus on specific areas of government efficiency:

(a) A regulatory accountability subgroup, which shall focus on evaluating ways to strengthen oversight of state agency rulemaking and making recommendations to ensure Idaho's leadership in regulatory reduction, with a goal of eliminating or shifting nearly all regulations to statute by 2033;

(b) A budget accountability subgroup, which shall focus on conducting base budget reviews, identifying opportunities to eliminate wasteful or redundant government services, programs, and expenditures, and making recommendations to further strengthen budget processes; and

(c) A government operations and oversight subgroup, which shall focus on assessing the structure of state government and recommending agency consolidations or streamlining efforts to optimize efficiency and ensure services are administered by the most appropriate agencies.

While some conservatives have opposed H364, saying it will amount to nothing and is, at best, the foxes guarding the henhouse, notice how it lays out a goal of "eliminating or shifting nearly all regulations to statute by 2033." H364, H290, and other bills are not isolated efforts but part of a larger project to reclaim legislative authority from the Executive Branch.

Consider House Bill 91, sponsored by Rep. Jordan Redman. H91 passed the Legislature nearly unanimously earlier this year and repealed nearly 150 sections of code related to the Department of Health & Welfare (DHW). House Bill 14, sponsored by Rep. Mike Moyle, orders other agencies to conduct a review of their own enabling statutes to figure out what can be consolidated or eliminated. Many of the statutes that are being eliminated delegated rulemaking authority to administrative agencies. By slashing them, the Legislature takes back the power it should never have relinquished.

Many of the concerns raised by parents and some conservative activists about H290, as well as the -1 rating given by the Idaho Freedom Foundation, miss the fact that everything they worry about is already in administrative rules. IDAPA sections 16.02.11 and 16.02.15 deal with requirements for daycare facilities and public schools, respectively. Everything in H290 — the list of required vaccines, the record retention requirement, and the DHW’s inspection authority — is already in administrative rules, while the bill would eliminate those entire chapters from IDAPA. If H290 were to fail, those clauses would remain intact.

However, H290 doesn’t just move these rules into statute — it strengthens parents' ability to opt out and removes the authority of DHW to implement new rules in the future.

Moving these rules into statute should help address concerns about future immunization requirements, such as the potential addition of the COVID vaccine. Currently, the DHW can use temporary rules to add vaccines without any input from lawmakers, in the name of public health. Once these rules are in statute, only an act of the Legislature can add a vaccine to the required list.

Some of the critics of this bill, and of the very concept of moving rules into statute, suggest that statutes are harder to change than rules. This is not the case. Rules are drafted and promulgated by administrative agencies. While the Legislature must review and approve these rules prior to them taking effect, once in effect they are difficult to remove. It only takes one chamber to reject a proposed rule, however eliminating an existing rule requires a concurrent resolution. Eliminating an existing rule also has another hurdle, as explained in Idaho Code 67-5291:

When rejecting a rule, the legislature shall make a finding of facts as to why the rule does not meet the legislative intent of the enabling statute by identifying how the rule is inconsistent with the authority granted by or the requirements of the corresponding section of Idaho Code. For purposes of this section, "part of the rule" means a provision in a rule that is designated either numerically or alphabetically or the entirety of any new or amended language contained therein. The rejection of a rule in whole or in part shall terminate the rule, in whole or in part, as of the effective date of the rejection.

To reject an existing rule, the Legislature must establish that the rule does not match the intent of the bill creating its enabling statute. Simply eliminating a rule because enough legislators disagree with it would likely draw court challenges from various stakeholders. The list of vaccines in IDAPA 16.02.11 and 16.02.15, for example, have been present in that rule since at least 2011 and were reaffirmed by concurrent resolutions several times since then. On the other hand, should H290 become law, then the Legislature can amend the list of vaccines any time in the future by simply passing a new bill.

Idaho Code 67-5291 also limits legislative oversight of rules to either accepting or rejecting each provision that is numerically or alphabetically designated. That means that the Legislature cannot simply alter a rule — it must strike the entire provision. Once in law, however, the Legislature can amend it however it wishes.

It is important to carefully research the bills that our lawmakers consider, and to beware of poison pills and unintended consequences. However, I would also warn against missing the forest for the trees. I suggest that, rather than evaluating bills like H290 in a vacuum, we should instead look at how they interact with existing laws, existing code, and other legislation that is working toward the goal of returning lawmaking power to our elected representatives.

Lawmakers at both the federal and state levels made a drastic mistake when they began delegating their constitutional lawmaking authority to unelected bureaucrats and experts. Restoring the proper balance of power is a fight worth having.