Column

COLUMN: Rules committee proves lawmakers haven’t ceded ultimate power to governor

Republicans statewide expressed outrage over Gov. J.B. Prtizker’s Friday filing of emergency public health rules concerning business operations during the COVID-19 outbreak.

Lawmakers should function as a coequal branch of government, and legislators challenging the authority of an opposite party executive is as reliable as the sun rising in the east. But calling these rules “a clear breach of the separation of powers,” as did state Sen. Dan McConchie, R-Hawthorn Woods, in a Sunday statement, overstates the governor’s power.

A state agency wanting to make or change a rule with external implications follows the Illinois Administrative Procedure Act. The General Assembly wrote that statute to delegate power to those agencies — part of the executive branch — while retaining oversight through The Joint Committee on Administrative Rules, which convenes Wednesday.

Current members are Senate Democrats Bill Cunningham, Kimberly Lightford and Tony Munoz; Senate Republicans Sue Rezin, Paul Schimpf and Chuck Weaver; House Democrats Mike Halpin, André Thapedi and Frances Hurley; and House Republicans Tom Demmer, Keith Wheeler and Steven Reick.

Agencies can make rules under four categories. Emergency rules like Pritzker’s take effect no more than 10 days after filing with the Secretary of State and can be in effect no more than 150 days. Extending such rules requires a companion proposal run through the conventional, deliberative process, which takes from 90 days to a year. Filing the same emergency rule more than once in two years requires the General Assembly to approve an exception.

The committee can take three actions on each emergency rule. The first merely indicates the committee has concerns. The others are comparative sledgehammers.

An objection indicates the committee finds rules inconsistent with state law, has bad economic effects on small businesses, municipalities or nonprofit organizations, or questions the rule-making process or the validity of the emergency. The agency has 90 days to respond to the objection, and any modification lasts for the remainder of the 150 days.

The committee can add a suspension, stopping enforcement. Members can take this action if they find the rule contrary to the public interest, safety or welfare.

The committee usually meets monthly but hasn’t since February, which is problematic. There’s no guarantee the Wednesday votes won’t fall on a strict party line, with a deadlock leaving the edicts in place. But lawmakers do a disservice to constituents by intentionally framing Pritzker’s actions as out of bounds.

These rules aren’t a “clear breach of the separation of powers,” they’re textbook examples of the executive branch using authority the legislative delegated, and Wednesday’s meeting is proof lawmakers have retained oversight powers. 

The eventual outcome might not satisfy Pritzker’s opponents, but an undesired result doesn’t invalidate an established process. Lawmakers could fix that process by changing or negating the Administrative Procedure Act, but that requires much more work than issuing angry statements.

SCOTT T. HOLLAND writes about state government issues for Shaw Media Illinois. Follow him on Twitter at @sth749. He can be reached at tsloup@shawmedia.com.

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