Separation of powers is a fundamental principle in both our state and federal Constitutions. The framers figured that by splitting up the powers that govern us, we, the governed would be less oppressed by our government (read Federalist 51).
But what happens when one branch relinquishes its power or another infringes? Does the loss of separation from this disrupted balance lead to increased oppression of the governed? We have two examples to consider.
Impeachment is the biggest test of this separation. Our federal Constitution gave Congress the power to remove the President. I’m sure you have heard about our recent civics lesson. The verdict has been given, though it was probably a foregone conclusion. Many trials are. But the failure of the US Senate to hear witnesses, review documents or even stay awake to “impartially” consider the charges doesn’t bode well for the power they are supposed to hold. The majority declared themselves submissive to the executive they were judging.
In fact, the previous administration exulted in and abused Congress’ impotence. When one branch abdicates, the other usurps. Executive orders have become fiat. Budgets are managed by “continuing resolution” from one threatened shutdown to the next. Our debt to GDP ratio is higher than any time except right after World War Two. Only when Congress, the House and the Senate, Republican, Democrat and Independent resolve to put aside differences and govern, can they reassert their separate constitutional power. Meanwhile, the executive sucks up the foregone power.
I believe the wisdom of the electorate desires separation and balance. The first midterm election after a new president is elected has almost always seen Congress swing the other way. Obama lost 63 House seats in the Tea Party wave of 2010; Trump lost 37 at his first midterm. Could this be the electorate pleading with Congress to assert its power?
Here in Idaho, it’s the opposite imbalance. The legislature is leaning on the executive branch. Take the recent Administrative rule dust-up example.
When the Idaho legislature passes a law, the executive branch that enacts that law writes administrative rules to fill in the details. For instance, Idaho code 33-1612 (Courses of Instruction) list in outline the general principles for classroom instruction, then delegates:
The state board shall adopt rules… to establish a thorough system of public schools with uniformity as required by the constitution.
The Idaho legislature reviews and approves or rejects all new administrative rules. They even got this power into the Idaho Constitution. But then, last session, the House and the Senate could not agree on the process for review and ended up not renewing ALL the administrative rules. Governor Little made lemonade out this and put a lot of government employees to work reviewing all 8,000 pages of rules. He successfully reduced some, but, by law ALL these new rules needed to be reviewed by the legislature.
Legislative review of executive branch rules can blur the separation of powers that keeps government weak, like it should be.
Last week, the House Education Committee voted to reject the rules for teacher certification standards. They also voted to reject all K12 classroom standards for Math, English and Science.
There can be great temptation to re-legislate when the rules come before you. Imagine being in the position of opposing legislation that gets passed. Or, more often, opposing funding for the department. Now imagine those rules come before you and your job as a legislator is to make sure they conform to the intent of the statute that you opposed. You might be tempted to throw a wrench in the works. The House Ed Committee is acting like a mechanic on meth.
The Idaho legislature has slowly over the years usurped power from the executive branch through rules review. It’s gotten to the point of micromanagement, wasting our taxpayer dollars. If the Idaho legislature really has so little productive to do, I propose they take January off and shovel snow.
Dan Schmidt is a family physician who lives in Moscow. Dr. Schmidt, a Democrat, served in the Idaho state senate from 2010 to 2016.