Like many Idahoans who are reading this, I recently received a copy of the “Idaho Voter's Pamphlet: Concerning Proposed Constitutional Amendment H. J. R. 2.”
Upon reading it, I was immediately reminded of the interlude between Boromir, the son of the Steward of Gondor, and Frodo, a hobbit, in Peter Jackson's film, The Lord of the Rings: The Fellowship of the Ring.
During this exchange, Boromir uses sympathy, reason, and logic with Frodo in an effort to secure the One Ring from Frodo in a vain attempt to use it to defend Gondor from the evil Lord Sauron, who made the ring and who is the only one able to control it.
Before Boromir can complete his argument, though, Frodo says, “I know what you would say, [and] it would seem like wisdom but for the warning in my heart.”
I feel the same way about the Constitutional Amendment the Legislature has placed on the Ballot for November.
“Shall Article III, of the Constitution of the State of Idaho be amended by the addition of a new section 29, to confirm that the legislature may authorize executive rulemaking; however, the legislature shall not relinquish oversight, which such oversight is done by approval or rejection, in whole or in part, of an executive rule; and to provide that the legislature's approval or rejection of such a rule shall not require the approval of the governor?”
Basically, this amendment will codify legislative oversight of “executive rulemaking” in the State Constitution. This is not an inherently bad thing, but students of history and of current events should recognize within the words of the amendment some of the most terrifying words ever composed by the state legislature.
It would seem like wisdom but for the warning in my heart. Frodo's words could never be more accurate than in response to this amendment. But why should there be a warning in your heart? Well, there are several:
First, while Constitutional Amendments are more common and more frequent in states than they are nationally, they are important matters and should only be adopted after serious and thoughtful consideration and analysis. And yet, I fear there has not been a sufficient amount of either with regard to this amendment.
Second, separation of powers. Kind of like the United States Constitution, the Idaho State Constitution creates separate branches of government. The Legislative and Executive branches have unique responsibilities. Briefly, the Legislative branch is the one granted the power to propose laws while the Executive branch is the one granted the power to execute laws or, in other words, put them into force.
Yet, the Legislative Council says, “The Legislature's ability to approve or reject executive rules is an important aspect of the separation of powers, because these rules have the force and effect of law” (“Voter Pamphlet”). Tragically, the truth is there is no separation of powers in Idaho, or in the national government for that matter. Otherwise, why is there a need for legislative oversight of “executive rulemaking” when there should NOT be any in the first place?
Third, “the Legislature may authorize executive rulemaking.” Keep in mind, this kind of rulemaking is not the same as an Executive Order which, if true to intent and purpose, conveys policies and procedures to the Executive branch. Rather, this kind of rulemaking refers to executive bureaucracies, extra-constitutional bodies endowed with unconstitutional power to create binding laws. You know what these are as they are usually abbreviated into acronyms. The EPA, DOJ, DHS, and FBI are all national examples of “executive rulemaking” bodies. Should there be Legislative oversight of such organizations? Absolutely! Should these bodies even exist? Absolutely NOT which voids the need for Legislative oversight! Additionally, we must ask ourselves, do we really want Idaho to have it's own version of Washington D.C.'s alphabet soup?
Fourth, of the amendment, a state legislator who was recently interviewed on the Neal Larson Show said, “this was not just bipartisan, but it passed unanimously in both the State House and the Senate; and the Governor has indicated his approval.” (My apologies if the quote isn't verbatim.)
Of course, any time I hear “bipartisan,” I am reminded of a quote from George Carlin: "Bipartisan usually means that a larger-than-usual deception is being carried out." Indeed, it's even worse than that because the entire state legislature and the state executive are in agreement that this amendment is needed.
The amendment has already been unanimously approved by the legislature and by the Governor, and for too many that's enough to make it a reasonable action. Tragically, as with the state health exchange, the legislature and those who support this amendment are wrong.
In the United States, it's not a magical ring, nor a piece of paper with words written on it that provides power to government. Rather, the voice of the people is the sole source of all power. What governments do, the people must empower, or it cannot be done.
Here's the rub, though: unless the people hold their governments accountable, their government will do as it wishes.
To members of the State Legislature who are reading this, I implore you to take this back to the drawing board. If you want to amend the Constitution to strengthen the Legislature, do so without giving away your Constitutional mandate to legislate by eliminating executive rulemaking bodies all together.
To everyone else, on November 4th, I urge you to vote “NO” on H. J. R. 2.