While the terms “laws” and “rules” may be used interchangeably in common conversation, in Idaho, they refer to two different functions of government. Laws or, more accurately, statutes must be passed by both chambers of the state legislature and cross the Governor’s desk before they become part of Idaho code. Administrative rules, on the other hand, are put together by personnel within the various state agencies and released in monthly Administrative Bulletins that are often hundreds of pages in length.
Unlike laws (which come into existence as bills), these rules are not voted on by both chambers of the state legislature or even by one entire chamber. Instead, they are reviewed only by relevant legislative committees and can be approved by a simple majority of one such committee. That means that instead of 105 state legislators casting a vote and the Governor having the opportunity to sign or veto a piece of legislation, a rule can be approved by fewer than ten legislators—and there is typically no additional approval required.
In some cases, rules can become permanent without any legislative review or approval. As long as a proposed rule doesn’t raise fees, the rule will automatically go into effect at the end of the legislative session unless it is reviewed and formally rejected by a relevant legislative committee from each chamber. In some cases, committee chairs will even decline to schedule a hearing on a controversial rule in order to allow it to go into effect without any debate or review.
The shortcomings of this system were brought home recently when the Idaho House Health and Welfare Committee voted 7-6 (with four Republicans and three Democrats making up the majority) to impose a school-required meningococcal vaccine on all 12th-grade students (even those who are legal adults) at the start of the 2020-2021 school year. That narrow committee vote is all that is required for this controversial decision to go into effect. It will not be reviewed or voted on by the full legislature.
This is just one of the dozens of rules that small legislative committees will quietly approve this session as they do each year. Some—though not all—proposed rules include a public hearing at some point in the process, but these are not typically well publicized and most Idahoans are not aware of the myriad proposed rules that might one day criminalize their previously legal behavior.
In many cases, there are no public hearings on proposed rules unless such a hearing is “requested in writing by twenty-five (25) persons, a political subdivision, or an agency.” Did you know that you needed to round up your friends and neighbors and all write letters to a government agency in order for the public to be included in the rule-making process?
How can we improve this process? Short of changing the law to require that all proposed rules be voted on by the entire legislature (which is certainly a proposal worth considering), we could also require that all proposed rules include well-publicized public hearings and that the relevant agencies be tasked with proactively identifying and contacting likely stakeholders and potentially affected parties to request their involvement in the process.
Unless or until such changes can be implemented, however, my best advice for Idahoans is to actively monitor the Administrative Bulletins that are released each month and to take advantage of the opportunity to submit written comments regarding the proposals. You should also reach out to your legislators when an issue arises which requires greater scrutiny. Idaho has a part-time legislature and our lawmakers cannot be experts on every subject. They often must rely on you to let them know when bad ideas are introduced through the rule-making process.
I look forward to working with the legislature and our state agencies to find ways to improve the rule-making process and to make sure that your voice is better heard and represented throughout our state government.