What is HJR 5 and why should you care?

When you vote Tuesday – you’ll weigh in on the next president of the United States, federal and state representatives, Idaho Supreme Court nominees and — depending on where you live — a spattering of local candidates.

You’ll also get to weigh in on something called HJR 5, a proposed amendment to the Idaho Constitution that is so wrapped up in legalese and technical language you may have to read it twice — or 10 times — to understand it.

On the ballot HJR5 – that’s House Joint Resolution 5 – reads like this:

What does that mean?

To put it simply, HJR 5 would provide an additional level of authority to a power the Idaho Legislature already possesses: the ability to approve or reject (or in essence veto) new administrative rules proposed by various executive state agencies, such as the Idaho Department of Fish and Game or the Idaho State Tax Commission.

Administrative rules are created by agencies to enforce laws put into place by the Legislature. Once in place, the Legislature reviews the rules to ensure they keep within the spirit of the legislation.

Now, as per state statute, this is already a responsibility and right of the Idaho Legislature. Typically Idaho’s legislative bodies approve most rules brought before them at the beginning of a legislative session, and reject a few each year.

But what many legislators want to do now is give extra protection to that right in case it is ever challenged in court. They want the right to be amended in the Idaho Constitution to guarantee their ability to approve or veto rules.

Where is this coming from?

Discussions about the Legislature’s power to approve or reject administrative rules has been around for a long time.

Senate President Pro Tempore Brent Hill, R-Rexburg, told EastIdahoNews.com one of the major reasons legislators want to amend the constitution is because the authority was challenged in 1990 by the Idaho Board of Health and Welfare. The case — Mead v. Arnell — went to the Idaho Supreme Court, where the court upheld the Legislature’s right to approve or deny rules.

There haven’t been any cases challenging that right since, but given what is happening in other states, some Idaho lawmakers see an amendment as a way to safeguard the right to approve or deny rules.

“Twenty-six years ago it cost the citizens nearly a million dollars to defend that right, and it would cost us a lot more if someone challenged it today,” Hill said. “(In other states) there are court cases that are going both ways, and we just don’t want to risk that in Idaho … we are trying to be proactive.”

A similar amendment to HJR5 was brought to voters in 2014, but narrowly failed to pass.

Support for and against the amendment

Support for the amendment came from both Republicans and Democrats in the Senate and House of Representatives.

Lawmakers such as Sen. Jim Risch and Lt. Gov. Brad Little have also come out in favor of the amendment.

“Agencies are unelected government officials that often do not understand the impact of their rules and regulations on Idaho families, farmers, ranchers and small businesses,” Risch said in a recent op-ed. “Voting yes on HJR 5 prevents state agencies from implementing overreaching and burdensome rules that negatively impact your livelihood, your leisure and your way of life.”

But other state officials don’t agree, including Idaho Attorney General Lawrence Wasden and Gov. C.L. “Butch” Otter.

Wasden argues the amendment is unnecessary because the Legislature already possesses the right to approve or veto rules. He also said it goes against the will of the people, since a virtually identical law was already rejected by voters.

“At its most basic level, HJR 5 reflects Legislative contempt for the will of the voters. The resubmission of this constitutional amendment reflects government telling the people what they want, as opposed to government serving the will of the people,” Wasden wrote in an op-ed. “In essence, the proponents of the amendment are claiming that they know better than Idaho voters what Idaho voters want. This power grab should be rejected and government reminded that it is a reflection of the will of the people, not the other way around.”

Otter, who initially supported the amendment, now says the amendment is unnecessary and is a threat to the operation of power between the three government branches.

This is partially because the amendment could be interpreted to give lawmakers authority to override or bar the governor from vetoing a law or rule.

“That fundamentally changes the dynamic of legislative review and is a serious breach of the balance and separation of powers between the Legislative, Executive and Judicial branches,” Otter wrote in an op-ed. “Forget about ‘checks and balances.’ By taking a belt-and suspenders approach to the rules review process, HJR 5 would disenfranchise the other branches and make the Legislature Idaho’s pre-eminent government organ.”

Hill tells EastIdahoNews.com that he does not believe that is how the amendment would be interpreted in court. He also affirmed that the measure is only being proposed to safeguard the Legislature’s right.

How does this affect you?

Regardless of the outcome of this election, lawmakers say voters probably won’t see any immediate changes, since the amendment won’t change anything that isn’t already being done.

The exception is if there is a lawsuit that challenges and takes away the right.

“Hopefully people won’t see a difference, unless this (right) were to go away,” Hill said. “Then when people have a problem that the Legislature never voted on, they’ll go and complain to a regulator and they aren’t going to do anything about it. If you take the Legislature out of the loop — the people that represent the public — then I think there is a problem there.”

On the other hand, other state officials say that possibility just isn’t likely enough to require a constitutional amendment.

“When it first emerged last spring, my initial impression was that it wasn’t a bad idea. After all, everyone wants government to be more accountable, right?” Otter wrote. “But after considering it further, my conclusion is that HJR 5 is about as good an example as you will ever find of a solution desperately in search of a problem.”

Find out more on the proposed amendment on the Idaho Secretary of State’s page.