Constitutional Amendment Giving Legislative Committee Veto Power Over Regulations Is A Solution in Search of a Problem Posted: January 12, 2018
Mr. Chairman, members of the committee:
I appreciate this opportunity to express my concerns regarding House Bill 10, which proposes an amendment that would fundamentally change in the current separation of powers in the Kentucky Constitution to allow a committee of the General Assembly to reject administrative regulations during the interim.
My concerns are the lack of necessity for such a dramatic shift in the current separation of powers, the disproportionate power that such an amendment would place in a relative handful of legislators to parse the “intent” of the General Assembly as a body, and the damage that the amendment would cause to each branch of our government.
The separation of powers under our Commonwealth’s constitution is clear – the legislative branch enacts laws, the executive branch implements those laws, where authorized, by administrative regulation, and the courts of justice determine whether the regulations so promulgated comport with the underlying statute. HB 10 would alter this separation of powers in a fundamental way, reversing part of the 1984 decision in LRC v. Brown by creating a legislative veto that could be delegated to a subset of members of the House and Senate.
The amendment is, simply put, a solution to a non-existent problem. 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 record shows otherwise. Those instances in which the Administrative Regulations Review Subcommittee has determined a proposed administrative regulation to be deficient are extremely rare, according to data from 2010 through 2017. In fact, fr0m 2000 through 2017, only 36 of the many thousands of regulations reviewed by a legislative committee were found “deficient,” and only 26 went into effect notwithstanding that finding.
In 2017 and 2016, no administrative regulations reviewed by the ARRS were found deficient.
From November 2014 through November 30, 2015, executive branch agencies filed 52 emergency administrative regulations (a decrease of 33 percent from the prior year) and 588 ordinary administrative regulations (an increase of 11 percent over the prior year). Of the ordinary administrative regulations filed, 75 were new, 412 were amendments to existing administrative regulations, and 101 were amended after comments.
Of those ordinary administrative regulations reviewed, only four were found deficient. The four administrative regulations found deficient became effective notwithstanding the findings of deficiency, based on written determinations made by the Governor. Three of those four were regulations of the Horse Racing Commission, and the fourth was a State Health Plan for facilities and services. Of the ordinary administrative regulation reviewed in 2014-5, less than 1% of the regulations reviewed were found to be deficient and became effective notwithstanding that finding.
From November 2013 through November 30, 2014, one of the 568 ordinary administrative regulations was found deficient and became effective notwithstanding the finding of deficiency based on a written determination made by the Governor . Thus of the ordinary administrative regulations reviewed in 2013-4, less than .2% of the regulations reviewed were found to be deficient and became effective notwithstanding that finding.
From November 2012 through November 2013, 2 ordinary regulations, constituting less than 1% of the regulations reviewed were found to be deficient for 2013 and took effect notwithstanding that finding.
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.
Overall, from 2000 through 2017, of the thousands upon thousands of regulations reviewed, 36 were found deficient and of those, only 26 went into effect notwithstanding.
The underlying premise of the proposed constitutional amendment, i.e., that the “executive branch regularly disregards the votes of the General Assembly Committees and implements administrative regulations found to be deficient” thus appears to have scant factual basis in the past 17 years.
With the length of time involved in promulgation of administrative regulations, and with the General Assembly meeting in annual session, those 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.
My other concern is that the delegation of the power to prohibit the adoption of administrative regulations to a committee of the General Assembly diminishes both the judicial and executive branches, even as the preamble to the bill recognizes to be co-equal branches of government. It also diminishes the role of the House and Senate as collegial bodies by allowing a small 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 the law in order to alter the outcome, not a committee acting as if it were the General Assembly.
I can fully appreciate the frustration that some members of the General Assembly may have concerning a Governor’s decision to put into effect regulations 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 sound science or statutory mandate. Yet 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 without upending the balance of powers in our Constitution that has worked effectively in the main for many years. Thank you and I’d be happy to answer any questions.