Editorial: Legislators wrong to chip away at governor powers

Fort Wayne Journal Gazette

A General Assembly study committee last month laid the foundation for recommendations aimed at providing lawmakers additional oversight of rulemaking by state agencies that could slow Indiana’s response to emergencies.

The Administrative Rules Review Task Force is the result of a failed Republican effort to mandate submission of emergency regulations to the Indiana attorney general for approval, and to limit those rules to 180 days. On the last day of the 2022 legislative session, lawmakers added limitations on rulemaking into a bill that Gov. Eric Holcomb vetoed.

Lawmakers passed an earlier rulemaking bill in 2021: House Enrolled Act 1123. It would’ve empowered lawmakers to call themselves into “emergency session” and intervene during public health emergencies such as in the early days of the COVID-19 pandemic. The Indiana Supreme Court ruled the act unconstitutional in June.

At the first meeting of the Administrative Rules Review Task Force, Chairman Rep. Steve Bartels, R-Eckerty, said he’d ask the 10-member group to vote eventually whether to recommend that lawmakers be notified when agencies adopt new rules or readopt expired ones, the Indiana Capital Chronicle reported. Bartels also wants a vote on whether the rules themselves be published prior to a public hearing.

Bartels said last week transparency is the reason for the oversight push. Hoosiers would welcome early notification of pending rule changes and the reasons for their need.

Currently, the attorney general has 45 days, and the governor 30 days, to review new administrative rules after adoption. Why would the attorney general undertake a legal review after rules have been sanctioned?

Though Indiana’s conflict over emergency powers has focused on public health and the governor’s COVID safety protocols, potential problems over rulemaking don’t end there. The state’s emergency management and disaster law lists other adversities.

Ice storms, drought, utility failure, radiological or biological events, terrorism or a technological emergency are all potential calamities that would have devastating effects on Hoosiers. Adding to the problems by arguing over who makes the rules to help in any of those scenarios would undoubtedly slow a state response and make things worse.

The three legs of our system of government – the executive, legislative and judicial branches – certainly should be coequals in governance, but the General Assembly is a body of part-time lawmakers. Chances are good the next crisis Hoosiers face – a tornado outbreak, widespread flooding or another highly infectious virus – will occur when the legislature is not in session.

The General Assembly sets policy and the executive branch implements it. Therefore, rulemaking authority should remain with the executive branch, where the governor must move with alacrity and urgency when the health and safety of state residents demand it.