By james art 
By Robert Robb
A legislative veto on regulations and emergency declarations would be compatible with the principle of separation of powers. Requiring legislative approval for essential executive functions is not.
The principle of separation of powers is the animating, if unstated, force behind the US Constitution. In the separation of powers, state power is divided among three branches with different roles: The Legislature, in this case Congress, makes the laws. The executive branch executes the laws. And courts resolve legal disagreements about what the law means and how it applies in specific cases.
Each branch must stay in its lane, although each has abuse of power checks from the other branches.
In Arizona, the separation of powers is expressly enshrined in the state constitution. Article 3 clearly states:
The powers of the government of the state of Arizona shall be divided into three distinct departments, legislative, executive, and judicial; and, except as provided in this constitution, such departments shall be separate and distinct, and no such department shall exercise the powers properly belonging to any of the others.
There are two ballot propositions, Propositions 315 and 135, that expand the state legislature’s ability to scrutinize potential abuses of power by the executive branch. In both cases, the extension of legislative power over the status quo is justified. But in both cases, the extensions contained in these ballot proposals go too far and constitute a violation of the separation of powers properly understood.
Proposition 315 would require legislative approval of an executive order that would impose regulatory compliance costs of more than $500,000 over five years. An exception is provided for emergency rules.
Sloppy legislation and excessive use of executive power created the need for measures to oversee and curb what is often called the administrative state. However, this is significantly more of a problem at the federal level than at the state level. Arizona has no history of regulatory overreach and already has a robust review process in place before state regulations are implemented.
Nevertheless, what would amount to a legislative veto of the regulations would be a reasonable and useful safeguard. And that’s what exists at the federal level.
Major federal agency regulations come with a 60-day enforcement delay. Congress may, by act of both houses, waive the regulation within that period. The resolution is presented to the president, who can veto it. Congress can then override the veto and override the regulation with a two-thirds vote.
Some similar powers for the Arizona Legislature would be commendable. However, this would have to come without the 60-day window, as there are extended periods of time when the Legislature is not in session. However, it should not be impossible to strike a balance between the need for regulatory expediency and certainty and a fair opportunity to exercise a legislative veto.
Instead of a legislative veto, Prop 315 requires legislative approval before a regulation can take effect.
This raises serious practical concerns 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 single regulation to trigger annual compliance costs of more than $100,000 in a $500 billion state economy with about 650,000 businesses. Even minor and non-controversial adjustments to existing regulations are likely to trigger the need for legislative approval.
The fact that the legislature is often not in session poses an even greater problem for the legislative approval regime than the legislative veto. Under Proposition 315, regulations requiring legislative approval must be submitted to the Legislature no later than 30 days before the start of the regular session in early January. This means that no new regulations can enter into force within a year. They must be accumulated and submitted by December for general consideration by the Legislature in next year’s regular session.
Now, the legislative process is meant to be deliberative, not necessarily expeditious. Failure to act is a legislative error. There are an infinite number of reasons why a legislature might fail to act. Not to mention why two legislatures might not act in concert. Moreover, action on a large number of mostly vexatious provisions will not be a legislative priority.
Having a low threshold for regulations requiring approval by a legislature with other priorities is not a recipe for effective and efficient administration of state programs.
It can also be argued that it is unconstitutional and certainly violates the principle of separation of powers. A legislative veto would be a check on executive abuse.
Requiring legislative approval of regulations makes the legislature the final word and supreme authority over what is essentially an executive function.
Proposition 135 would require legislative approval of any emergency declaration by the governor after 30 days. Exceptions are made for declarations related to war, flood or fire.
It’s a hangover from the COVID-19 lockdown days.
I believe that then-Governor. Doug Ducey overstepped his legal authority these days. In a public health emergency, there is express statutory authority for the governor to do a lot, including organizing and distributing medical resources, cutting red tape for it, and ordering those affected to be quarantined.
There is no express authority for the governor to close businesses or restrict their operations to stop the spread. Yet that’s what Ducey did for an extended period of time. He claims he has not imposed mask mandates, but it is a condition he has accepted in order for businesses to remain even partially open. Ducey asserted authority from a general statute regarding the adoption of a public health emergency management plan. I think he read too much into that provision.
Whether a blanket shutdown of the economy was necessary to stop the spread remains debatable. The main concern, after saving lives, has been the COVID patients who are overwhelming the hospitals. In Arizona, hospital capacity was heavily strained but never disrupted. Although I was opposed to the economic shutdown, I cannot say with confidence that without it hospital capacity would not have been disrupted.
I think a legislative veto of emergency declarations, including public health ones, would be in order. As would be a lower threshold for lawmakers to call a session for that purpose, which Proposition 135 provides. The emergency powers granted to the governor are broad and include the abrogation of what would otherwise be considered basic rights. A legislative check on the exercise of these extensive and extraordinary powers in the form of a veto would be a safeguard compatible with the principle of separation of powers.
Requiring legislative approval of an emergency declaration after 30 days is a violation of this principle. Unlike Prop 315, the violation isn’t actually vulnerable to legal challenge because it would be a constitutional change, not a statutory one.
However, the potential downsides of this limitation on executive action are orders of magnitude greater than under Proposition 315. Again, the legislature’s default mode is inaction, not action. Much of what Ducey did that was unquestionably about managing the COVID pandemic, such as mobilizing and distributing medical resources, required a planning horizon of much longer than 30 days. Very few true emergencies are fully responded to within 30 days. A legislative veto and a lower threshold for the legislature to call itself into session would be a sufficient check on potential abuse of gubernatorial emergency powers without impeding the executive branch’s ability to fully respond to true emergencies.
In the case of public health emergencies, the Legislature has already unreasonably 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 principle of separation of powers as a check on potential abuses by the executive.
However, requiring legislative approval undermines effective and efficient state administration and violates the principle of separation of powers by excessively interfering with the core functions of the executive branch.
Editor’s note: Robert Robb writes about politics and public policy Understeg. Contact him at [email protected]. Reader reactions, pro or con, are welcome [email protected].