Both House Speaker Scott Bedke and Senate Majority Leader Bart Davis say they disagree with Gov. Butch Otter’s interpretation of the “in whole or in part” clause in the proposed Idaho constitutional amendment, HJR 5,  but a University of Idaho law professor says the clause certainly could be read in the way Otter’s pointing out. “It seems to me that there is a real danger that it could be interpreted in a way that the amendment’s sponsors did not intend,” said Shaakirrah Sanders, associate professor of law for the University of Idaho’s College of Law.

Otter says by including the clause “in whole or in part” in the constitutional amendment, the measure sets the stage for expanding the Legislature’s power over agency administrative rules, which currently extends only to accepting or rejecting rules. Otter argues that the Legislature could then reject just a part of a rule – like the word “not” – and completely alter its meaning, with no input from the executive branch.

“I respectfully disagree,” said Davis, an attorney. “It doesn’t say that you strike any word. It talks about in parts, so that’s all it is. You have major parts and sub-parts, not words.” The Legislature typically considers rules section by section, so the measure reflects that practice, Davis said.

Both Davis and Bedke noted that two years ago, at the same time that lawmakers first unsuccessfully proposed the constitutional amendment to voters, they amended the state’s Administrative Procedure Act to remove a reference to a rule being “amended or modified” by the Legislature, leaving only the reference to a rule being “rejected.” That’s how the law always has been interpreted, including in a 1990 Idaho Supreme Court decision. HB 540 in 2014 passed both houses unanimously and was signed into law by Otter.

“We have never amended, we don’t intend to amend,” Bedke said. “That’s a red herring.”

But it’s clear that attorneys can interpet the language in the constitutional amendment in varying ways. “One thing that is clear is that there is a lot of ambiguity,” Sanders said. “There’s nothing that I see that would limit that ability to approve or reject in whole or in part to by section versus by word. It could be that they say, ‘All right, let’s take the ‘not’ out’ as opposed to ‘let’s remove subsection B.’”

That ambiguity, she said, “could lead to a possible need for the Idaho Supreme Court to interpret the scope of this amendment if it passes.”

Lawmakers in Idaho, under a 1969 law that was upheld by the Idaho Supreme Court in 1990, have the power to review and reject agency rules without the governor vetoing their action. Lawmakers are now attempting to enshrine that power in the Idaho Constitution through a constitutional amendment – which would mean the state Supreme Court could never change its mind and take that power away. Opponents have argued that it’s up to the Supreme Court to determine where the boundaries should fall for separation of powers between the legislative, executive and judicial branches. Legislators say they believe the process will be more accountable if their veto power over rules can’t be taken away by courts.

Idaho state lawmakers spend roughly the first three weeks of every year’s legislative session reviewing agency rules that have been enacted since they last met. Each of those rules must be enacted in compliance with the Administrative Procedure Act, which includes requirements for public comment, hearings, and in some cases, negotiated rule-making processes that bring together all affected parties.

While legislative leaders are promoting the constitutional amendment, it’s being opposed by members of the executive branch including Otter and Attorney General Lawrence Wasden, who have called the amendment ill-advised.

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