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HJR5 updated bullet points…

24 October 2016

HJR5 Bullet pointsBill Text:

ADMINISTRATIVE RULES – Proposing an amendment to Article III of the Constitution of the State of Idaho by the addition of a new Section 29 to provide that the Legislature may review, approve or reject any administrative rule to ensure it is consistent with legislative intent and to provide that legislative approval or rejection of a rule is not subject to gubernatorial veto.

Facts or stated beliefs:

Legislature creates executive branch agencies

Legislature grants rulemaking power to the executive branch

IDAPA rules are created by the executive branch (agencies)

What happened before IDAPA? Agencies could create rules without legislative oversight-no way to see rules created by agencies.

No legislative authority to correct the Administrative procedures act.

Legislature can’t wipe out executive agencies or it violates the separation of powers?

Administrative procedures act covers ability to reject rules and is a cumbersome process.

Legislature writes statutes, executive writes rules- stated to be balance of power (example: EPA writes rules, congress can review rules and executive branch can say no.)

Health Authorities (hybrid H&W, appointed by commissioners) Sued executive agencies in 1990

Rules by the box full are all approved to circumvent the conflict of presentments that deal with the altering of the power or abolition of the agency, presentments being a cumbersome process.

Admittedly, the executive branch is de facto law making, which isn’t law

“Faithful execution” of the laws is apparently something more than signing or rejecting the proposed laws but the ability to make rules?

Example or bureaucratic complication: ITD. Board members appointed by governor, originally3 person board, the governor doesn’t appoint the Director, the board does. Now a 7 member board, each violates the law, they think the people in the district are their constituents but the board doesn’t run the agency, they hire the director and he runs it! People think administrative rules are law when it is only an administrative jurisdiction

Supporters say:

Article 4, section 20 defines executive agencies

HJR5 will give the legislature oversight and the ability to edit, alter or overturn rules created by the Executive branch agencies.

This law is currently in statute but they want to add it as an amendment so the law cannot be struck down by the courts?

Rules have force and effect of law

The passage of this resolution will restore the power to the legislature.

Attorney General Wasden does not support it because his deputies make rules

Opposition says:

Article 2, Section 1: powers divided into three branches…no persons exercised with one, shall exercise those of another…”

Article 3, Section 1: Legislative power…Enactment clause… Be it enacted by the legislature…”

Article 3, Section 14: Bills may originate in either house…bills raising revenue in the house…”

Article 3, Section 15: no law to be passed except by Bill, read on three several days

Article 4, Section 1: “… Perform such duties as prescribed by this constitution and by law…” (By the legislature)

There is no power stated in Article 4 that states that agencies have lawmaking power or that these laws apply to the people.

HJR5 is an admission by the legislature that the executive agencies are abusive in their perceived authority.

Do “administrative rules” apply to any law that applies to the citizens or only to the administration that creates them?

In the 1960’s there was no such rule making power, what necessitated it?

Why would governor support a bill that strips him from his authority?

Executive branch can’t constitutionally make law, the Legislature does

Executive branch is making law through rule making

Executive branch has exceeded the maximum number under the constitution

The legislature has done nothing to rein in the number over 20

The legislature has done nothing to control the rule making power

How can the legislature create an agency but not control its abuses?

Administrative policy is not law, as it does not lawfully apply to the people, it applies to the administrative agency that creates it.

Rule-making power may be granted as necessary and proper but who should these rules apply to?

Executive agencies are to some degree controlled by the federal government, which is a violation of the separation of power between state and federal government

Executive branch agencies are writing rules that apply to the people as law, which is a violation of the separation of powers between the executive and legislative branch

Why would the legislature fear the courts striking down a statute and not a constitutional amendment especially since neither the courts or the legislature either care or understand the purpose or the text of the Constitution anyway much less anything related to jurisdiction, the separation of powers or checks and balances? And if a court were to rule against the law or amendment, what enforcement mechanism do they have to enforce it if the legislature Checks the judiciary?

The legislature doesn’t read all the bills before they pass anyway, much less read those three times and or suspend the rules?

The legislature continually shirks its duty and fails to stand exercising their full authority anyway where these laws and rules created by collective organizations somehow even apply to the people without an enactment clause, passed as a rule like common core?

They say they are using HJR5 to restrain federal agencies “like the control of surface water?” If the state lawfully passed a constitutional amendment declaring marriage between a man and a woman, if I remember correctly, the state peacocks threatening a lawsuit against the very agency that was guilty of the overreach of power and overthrew or nullified the states amendment?

How then will an amendment, protect the state from federal overreach when the basic understanding of our state government is that we are inferior to the federal government?

What can we tell by those in support of anything? National Association of Legislatures supports this? If we are remotely interested in being constitutional (be serious) How is this agency constitutional and how much pull and control should a collective association or agency have as the bill will most likely benefit the agencies or corporations at the expense of the citizen?

Governor Otter and Brad little support it? What’s that tell you when they allowed federal overreach giving us common core and Obamacare, gay marriage and Muslim refugees etc. then stating he was going to challenge federal overreach in a federal court? Sounds like the state is subservient? Didn’t the court attempt to nullify a lawfully created state constitutional amendment and the star cowered like a slave to its master?

Today, we can always find the truth by following the money since evidence of the governorship, for example, appears so focused, not on maintaining liberty as an elected governor of the state but consumed with job creation like somehow it’s his job as a corporate executive to bring jobs here to Idaho on taxpayer subsidies and making what would appear to be treaties with foreign countries that I believe the job was lawfully delegated to congress.

How are words of HJR5 to replace the mechanism of citizen accountability when the state adheres so loosely to not only the GOP platform but the state and federal constitution? If they feel that adherence to these documents is not necessary is it any wonder why we’re in the shape we are in as a state or nation?

I was told in the last GOP convention that their biggest frustration is that “constitutionalists” believe those that take an oath or say they have a platform should stick to it, when they believed it was just a loose basic guideline that can be contorted at will. Is this why the GOP wouldn’t realize if the party were hijacked by Marxists or other subversive elements? How could they possibly?

It is evident that FARM BUREAU, an NGO, is lobbying and printing material in support of HJR5 as I was handed a flyer to confirm that fact. My first question is what power and authority should a collective organization have over an individual’s concern and could not that collective, with its bargaining power and money, strip that power from the individuals that oppose what they support? Shall we as state citizens also support giving up state and national sovereignty in support of TPP/TTIP that apparently through an article in Ag weekly Farm Bureau supports?

Is anyone asking the motivation for such a dangerous move or are they attempting to bamboozle people either because they may be misled of that they desire to fulfill some agenda that somehow slipped under the radar?

What constitutional power should associations of legislators or groups like farm bureau have that are collective unions against the individual vote of the citizens? And what if these collective organizations so focused on profit are unaware of unintended consequences that could equate to the obliteration of state sovereignty?

It’s like courts, the congress has the authority to rein in its control but won’t because they now use judicial indefference where they play “circle jerk” with the citizens, a political “hot potato” if you will. Simply stated if the legislature sees delegated power abused why the hell do they need words on paper when the enforcement mechanism isn’t words, that enforcement mechanism is knowledge and action!

Politicians #1 desire is to get re-elected, if citizen or the lobby has a problem, the legislator bears the consequence.


Why oppose HJR5?

If the legislature can create an agency, it can surely UN-create it or control its authority without HJR5

It will expend government and enshrine these agencies into the constitution

It will constitutionalize executive branch bureaucracies to create administrative rules that apply to the people as law, rather than to create administrative policies that apply only to the agencies.

It will constitutionalize all of the agencies beyond the maximum allowed 20 specified in the state constitution and allow them all to make rules that apply to the people as law.

It will constitutionalize the ability for the federal government to continue to influence these agencies forcing regulations as law on the people



The legislature has the lawful power and authority to create or abolish these agencies by law.

If the legislature realizes that these agencies are abusing their authority, the legislature has the power, it just needs to use it.

               Return agencies to maximum allowable agencies of 20

               Restrict their rule making power to only the agencies that create them.

               Restrict federal involvement from within those agencies.

               Restrict any outside influence by corporations, NGO’s or their lobby

               Return the whole power to legislate to the legislature.


Tom Munds