KRC Director Testifies Against Proposed Constitutional Amendment Allowing Legislative Committees To Veto Administrative Regulations Posted: January 9, 2015
TESTIMONY BEFORE SENATE STATE AND LOCAL GOVERNMENT COMMITTEE
January 8, 2015
Senator Bowen, Committee members, I appreciate this opportunity to express my concerns regarding Senate Bill 2, which would place on the ballot a proposed amendment to the Kentucky Constitution allowing the General Assembly to delegate to an agency or committee of its members, the power to make void and unenforceable any administrative regulations that such a legislative agency or committee disapproves.
It is only because I harbor a deep streak of masochism that I appear before you to express my concerns regarding a proposal that is the number two priority of this chamber’s majority party, unheeding of Senator Harris’ oft-repeated admonition to me that “Fitz, you know the bill wouldn’t be coming up unless the votes were there to pass it,”
Mr. Chairman, this meeting marks the beginning of my 36th year of appearing before committees of the General Assembly. I would not be here, or have been here, without an enduring respect for the deliberative process that is at the heart of this branch of state government. My concerns with SB 2 are twofold - the lack of need for such an amendment, and the delegation of judicial, executive, and legislative power of the House and Senate to a committee of the General Assembly.
The separation of powers under our Commonwealth’s constitution is clear – the legislative branch enacts laws, the executive branch executes those laws, where authorized, by administrative regulation, and the courts of justice determine whether the regulations so promulgated comport with the underlying statute. SB 2 would alter this separation of powers in a fundamental way, reversing part of the 1984 decision in LRC v. Brown by creating what is in essence a constitutional right to a legislative veto over administrative regulations that could be delegated to a subset of members of the House and Senate.
My first concern is the lack of necessity for the amendment. The premise of the bill, as reflected in the preamble, is that “the executive branch regularly disregards the votes of the General Assembly Committees and implements administrative regulations found to be deficient,” yet the recent record reflects otherwise.
Those instances in which the Administrative Regulations Review Subcommittee has determined a proposed administrative regulation to be deficient are extremely rare. According to the Report of the 2014 Administrative Regulation Review Subcommittee, from mid-November 2013 through mid-November 2014, executive branch agencies submitted 568 ordinary administrative regulations (up 15% from the prior year), 103 of which were new, 374 of which amended existing regulations, and 91 of which were amended after public comment.
Of the ordinary regulations reviewed, 391 were approved (some after the agency accepted comments from the Subcommittee regarding Chapter 13A compliance) and only 1 was found to be deficient – a regulation of the Department for Medicaid Services on recipient cost-sharing. That regulation became effective notwithstanding the finding of deficiency based on a written determination of the Governor.
In 2013, of the ordinary administrative regulations reviewed, 434 were approved and only 3 were found to be deficient. Of those three, only two became effective based on written determinations by the Governor – the first being the required core academic standards, and the second, a regulation relating to managed care promulgated by the Department for Medicaid Services. Thus, less than 1% of the regulations promulgated by agencies and reviewed by the ARRS were found to be deficient for 2013.
For the period of 2010 through 2012, the numbers are quite similar. In 2012, the Administrative Regulations Review Subcommittee made no finding of deficiency for any of the administrative regulations reviewed. In 2011, one regulation relating to assessment of ad valorem taxes on watercraft was found deficient and was later withdrawn by the agency.
With the length of time involved in promulgation of administrative regulations, and with the General Assembly meeting in annual session, those very rare instances in which the Governor determines to implement a regulation notwithstanding a finding of deficiency, can be addressed through specific legislation, and the full membership of the House and Senate can debate these matters of public policy. If the LRC believes that immediate action is necessary to prevent implementation of a regulation that it believes is contrary to law, it may seek a declaration of rights and may challenge the regulation under Kentucky Constitution Article 2.
The delegation of the power to prevent implementation of administrative regulations to a committee of the General Assembly diminishes both the functions of the judicial and executive branches, even as the preamble to the bill recognizes them to be co-equal branches of government. Yet it also diminishes the role of the House and Senate as collegial bodies by allowing a subset of the House and Senate to legislate. Particularly where the question is not one of executive branch authority, but rather a disagreement over the exercise of discretion that the General Assembly has granted to the Executive Branch, it should be the General Assembly as a whole that makes a decision as to whether to change a law in order to alter the outcome, not a committee or legislative agency acting as if it were the General Assembly.
Senator, and members of the committee, I can fully appreciate the frustration that some members of the General Assembly may have concerning the Governor’s decision to adopt the revised core standards and managed care revisions notwithstanding the ARRS rejection of those regulations. I have, as you know, had (and expressed) my own frustrations on occasion when I believe that an agency has acted in a manner that is not consonant with statutory mandate. Remedies already exist for those rare instances in which an agency is deemed to have acted in a manner contrary to the letter and intent of legislation. I would hope that those very rare instances could be addressed by focused pieces of legislation without upending the balance of powers in our Constitution that has worked effectively in the main for many years.