Props 315 and 135 take the legislative role too far

A legislative veto on regulations and emergency declarations would be compatible with the separation of powers principle. Requiring legislative approval for core executive branch functions isn't.

The separation of powers principle is the animating, although unstated, force behind the U.S. Constitution. Under the separation of powers, government authority is divided among three branches with distinct roles: The legislature, in this case Congress, makes the laws. The executive implements the laws. And the courts decide legal disagreements about what the law means and how it applies in specific cases. 

Each branch is supposed to stay in its lane, although each has checks on the abuse of authority by the other branches.

In Arizona, the separation of powers has been explicitly enshrined into the state Constitution. Article 3 plainly states: 

The powers of the government of the state of Arizona shall be divided into three separate departments, the legislative, the executive, and the judicial; and, except as provided in this constitution, such departments shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others.

There are two ballot propositions, Propositions 315 and 135, that expand the ability of the state Legislature to check potential abuses of authority by the executive branch. In both cases, an expansion of legislative authority over the status quo is warranted. But in both cases, the expansions contained in these ballot propositions go too far and constitute a breach of the separation of powers, properly understood.

Prop. 315 would require legislative approval of an executive branch regulation that would impose regulatory compliance costs in excess of $500,000 over five years. An exception is provided for emergency rules. 

Sloppy legislating and executive branch overreaching has created the need for measures to oversee and contain what is often called the administrative state. This, however, is a significantly greater problem at the federal level than at the state level. There is not a history of regulatory overreach in Arizona, and there is already a robust review process before state regulations are implemented.

Nevertheless, what would amount to a legislative veto over regulations would be a sensible and useful precautionary step. And that’s what exists at the federal level.

Major regulations by federal agencies come with a 60-day implementation delay. Congress can, by resolution of both chambers, vacate the regulation within that period. The resolution is presented to the president, who can veto it. Congress can then override the veto and effectuate the repudiation of the regulation by a two-thirds vote.

Some similar authority for the Arizona Legislature would be laudable. It would have to come without the 60-day window, however, since there are prolonged periods of time in which the Legislature isn’t in session. However, a balance between the need for regulatory expediency and certainty and a fair opportunity for the exercise of a legislative veto shouldn’t be impossible to strike. 

Instead of a legislative veto, Prop. 315 requires legislative approval before a regulation can go into effect.

There are serious practical concerns with this and a serious threat of harmful administrative paralysis. 

The threshold for a regulation to require legislative approval is quite low. It doesn’t take much for a regulation to trigger annual compliance costs in excess of $100,000 in a $500 billion state economy with some 650,000 businesses. Even minor and uncontroversial tweaks of existing regulations are likely to trigger the need for legislative approval.

The fact that the Legislature often isn’t in session creates an even greater problem for a legislative approval regimen than a legislative veto one. According to Prop. 315, regulations requiring legislative approval have to be submitted to the Legislature no later than 30 days before the beginning of a regular session in early January. That means no new regulations can go into effect during the course of a year. They have to be accumulated and submitted by December, for consideration in bulk by the Legislature in the following year’s regular session. 

Now, the legislative process is designed to be deliberative, not necessarily expeditious. Inaction is the legislative default. There are an infinite number of reasons why a legislative body might not act. Not to mention why two legislative bodies might not act in concert. Moreover, acting on a large body of mostly tedious regulations won’t be a legislative priority.

Having a low threshold for regulations to require approval from a Legislature with other priorities isn’t a recipe for the effective and efficient administration of state programs.

It is also arguably unconstitutional and certainly violates the separation of powers principle. A legislative veto would be a check on the abuse of executive branch authority. Requiring legislative approval of regulations makes the Legislature the last say and ultimate authority on what is quintessentially an executive branch function. 

Prop. 135 would require legislative approval of any declaration of an emergency by the governor beyond 30 days. Exceptions are made for declarations related to war, flood, or fire.

This is a hangover from the Covid shutdown days.

I believe that Gov. Doug Ducey exceeded his statutory authority during those days. In a public health emergency, there is explicit statutory authority for the governor to do a lot, including marshaling and allocating medical resources, cutting through red tape to do so, and ordering those afflicted to be quarantined. 

There is no explicit authority for the governor to shut down businesses or restrict their operations to stop the spread. Yet that is what Ducey did for a prolonged period of time. He claimed that he did not impose mask mandates, but that was a condition he adopted for businesses to remain even partially open. Ducey asserted authority from a general statute about adopting a plan to manage a public health emergency. I think he read too much into that provision.

Whether a general economic shutdown was necessary to stop the spread remains debatable. The primary concern, after saving lives, was Covid patients overwhelming the capacity of hospitals. In Arizona, hospital capacity was severely stressed, but never breached. While I was an opponent of the economic shutdown, I cannot say with confidence that hospital capacity wouldn’t have been breached without it. 

I think a legislative veto over emergency declarations, including public health ones, would be in order. As would be a lower threshold for legislators to call themselves into session for that purpose, which Prop. 135 provides. The emergency powers granted a governor are extensive and involve overriding what would otherwise be regarded as fundamental rights. A legislative check on the exercise of those extensive and extraordinary powers, in the form of a veto, would be a safeguard compatible with the separation of powers principle. 

Requiring legislative approval of an emergency declaration beyond 30 days is a violation of that principle. Unlike Prop. 315, the violation isn’t really vulnerable to a legal challenge, since this would be a constitutional change rather than a statutory one. 

However, the potential downsides to this limitation on executive branch action are orders of magnitude greater than with Prop. 315. Again, the Legislature’s default mode is inaction, not action. A lot of what Ducey did that was uncontroversial to manage the Covid pandemic, such as mobilizing and allocating medical resources, required a planning horizon of much greater than 30 days. Very few true emergencies get completely responded to in 30 days. A legislative veto and a lower threshold for the Legislature to call itself into session would be a sufficient check on potential gubernatorial abuse of emergency powers, without hamstringing the ability of the executive to fully respond to true emergencies.

In the case of public health emergencies, the Legislature has already unwisely limited the executive to 120 days of self-declared emergency powers, and that limited to 30 day declarations issued consecutively. After 120 days, the Legislature would have to approve any extension. 

For both regulations and emergency declarations, a legislative veto would be appropriate and compatible with the separation of powers principle as a check on potential executive branch abuse. Requiring a legislative approval, however, undermines effective and efficient government administration, and violates the separation of powers principle by excessively intruding on core executive branch functions.

Reach Robb at robtrobb@gmail.com.

Note to readers: In addition to this Substack, I maintain a robertrobb.com website, where I post links to all my writings. There is a “Ballot Measures” button on the front page, which will take you directly to columns about the propositions, for those interested in seeing the analyses in one place.