The balance of power, or my legislature can beat up your executive

Administrative rulemaking is an admittedly dry part of government. Its dryness doesn’t make it any less important. Rulemaking comes about because, among other things, the executive branch has expertise. Legislatures, especially part-time legislatures, simply don’t have the time or the expertise necessary to craft laws of requisite detail and depth; nor should they be expected to.

Yet sometimes the legislature desires to assert authority over the executive. Expertise is no substitute for being the people’s representatives. (There is a certain degree of truth to this, but I don’t want to get into a philosophical discussion of which branch amongst the three branches is the most equal; at least not right now.) In New Mexico, the state legislature is proposing an amendment to the state constitution to allow the legislature to prohibit “regulatory rules” (a redundant statement here in Utah) from taking effect until reviewed and approved by the appropriate legislative committee. The legislature would need to do this by law if it so desired (for the text of proposed amendment, see Senate Joint Resolution 14 at the New Mexico State Legislature.

New Mexico has done it right, in one sense. If the legislature is going to assert this type of control over the executive, then it must be done via a constitutional amendment. Any statutory attempt would be subject to a separation of powers attack, or so I suppose. By amending the constitution, that attack is sidestepped. The governing document of the state will allow this incursion into the executive. Is this a good thing?

When we tout the values of limited government, are we only talking about limiting the executive? I don’t think so. All branches of government must have some limits, even the legislature. But here we have a state legislature essentially doing an end run around the principle of separation of powers, around the principle of limited government, in an attempt to arrogate power. I think that this is wrong.


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