Legislature(1997 - 1998)
04/30/1997 01:36 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
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HJR 2 - REPEAL OF REGULATIONS BY LEGISLATURE Number 0038 CHAIRMAN GREEN announced the first order of business was House Joint Resolution No. 2, proposing an amendment to the Constitution of the State of Alaska relating to repeal of regulations by the legislature. REPRESENTATIVE NORMAN ROKEBERG, sponsor, said this issue had been before the public on three previous occasions. It is an attempt by the legislature to reassert what he believes is its constitutional right to overcome "rogue regulations" via resolution, rather than by creating a new law in the form of a bill subject to a governor's veto. REPRESENTATIVE ROKEBERG said the state has more than 9,500 pages of regulations with the full force and effect of law. He stated, "And because of our constitutional structure, with a very strong executive, I believe the case that the courts had struck down, the ability of the legislature to repeal by resolution, has imbalanced the checks and balances in the separation of power doctrine in the state of Alaska's constitution." He said this constitutional amendment would, in part, rebalance the proper position of the legislature relative to the executive branch. REPRESENTATIVE ROKEBERG submitted that this proposition failed previously before the voters because of incomplete understanding and lack of full support by Alaskans. Now the body of regulations "has exploded," and citizens' daily lives are touched by regulations for which the legislature has had little or no input. Number 0238 REPRESENTATIVE ERIC CROFT advised members that he is on the House Joint Committee on Administrative Regulation Review and had looked into this. He explained, "Their approach is short of giving us a legislative veto. I think Colorado has a `sunset unless approval.' Another state has a burden shift, so that if we declare that that wasn't what we meant, it makes it much easier to challenge the regulation; it doesn't wipe it out, but it affects ... the burden of proof on challenging it." REPRESENTATIVE CROFT asked why they should go the full leap to a legislative veto on regulations, rejected three times by the people, instead of considering one of those intermediate ideas, which may or may not require amending the state constitution. Number 0311 REPRESENTATIVE ROKEBERG indicated if there are other ways to ameliorate this problem, he is not against them. However, he believes this issue is of major importance. He also believes that having the input of the people and allowing this mechanism to go forward speaks to case law in Alaska and would allow the legislative branch to exercise what he believes is its existing power, but which was struck down in the A.L.I.V.E. Voluntary case. REPRESENTATIVE ROKEBERG agreed this could be characterized as a veto; it provides for "the exact, specific repeal of the discrete regulation." He believes the legislature should have that ability, without the major expense and time of reintroducing legislation. He pointed out that a resolution requires a committee process and the ability of the public and the executive branch to have input. REPRESENTATIVE ROKEBERG cited as an example "the fire storm that's created among the users of the airports of the state because of the voluminous regulations that do not meet the demands of the users of those airports." He said the 19th Legislature had passed a specific law endeavoring to straighten out those regulations in the last session, "and then the Administration takes it upon itself to rewrite the entire regulation book and in essence contravene the intent of the legislature." He submitted that HJR 2 should have bipartisan support within the legislative branch. Number 0482 REPRESENTATIVE BRIAN PORTER pointed out that the proposition in the resolution merely asks whether the legislature, by joint resolution, may repeal a regulation adopted by the state or an agency; it gives no rationale. He noted that the National Federation of Independent Business (NFIB) had surveyed members regarding whether the state should have the ability to override a regulation "found to be improper or inconsistent with the law." He suggested it may be effective to put that into the constitutional amendment provision so that people will see what the legislature intends to do. Number 0553 REPRESENTATIVE ROKEBERG said that was a good point and the sponsors are looking into revising the language so that voters may understand it better, both in the voter pamphlet and on the ballot itself. However, he preferred to move the resolution along because it had another committee of referral (the House Finance Committee). Number 0614 CHAIRMAN GREEN noted that regulations are adopted through the administrative side of government; this would give the legislature the right to override those. He asked for Representative Rokeberg's estimate of this Administration's stance. REPRESENTATIVE ROKEBERG replied that the Administration opposes it; it had been heard in a prior committee and there was a letter in committee packets regarding this. REPRESENTATIVE ETHAN BERKOWITZ said it seemed to invite questions about what would happen with judicial powers. He asked: When regulations are improper or inconsistent with laws, isn't that call normally made within the judiciary? REPRESENTATIVE ROKEBERG replied that it was a point well-taken, which was why they had not come forward with a rewrite, if, in fact, they were going to. He said the judiciary had spoken by restricting the power of the legislature, "and that's something we want to ameliorate with this amendment." Number 0705 CHAIRMAN GREEN stated his understanding that the concern may be that a "rogue regulation-writer" had missed what was intended by the legislation used as an authority to enact a regulation, rather than a regulation being "wrong" or somehow illegal. Number 0732 REPRESENTATIVE ROKEBERG replied, "I would say on that, if we were to be specific about that, then it would be a matter of proof whether the legislature had standing in their interpretation to do that. The way the existing resolution is drafted, it gives the legislature the power to look at any regulation, not one that it just judged was inconsistent with the intent of the law. So, there is a very distinct differential there between those two points. And I, for one, prefer the more open-ended, if you will, ability of the legislature to review regulations, because, quite frankly, Mr. Chairman, regulations are drafted in the guise of legislative statutory authority but may be entirely off the mark or not even germane to a particular bill sometimes. So, ... then it would become ... problematic as to whether there was standing for the legislature to do that, if that was the case." Number 0800 CHAIRMAN GREEN indicated they were actually going back now and looking at the intent of some things at statehood. Number 0824 REPRESENTATIVE PORTER said he agreed with everything the sponsor had indicated was a reason for proposing this legislation. Mentioning the concept of "three strikes, you're out," he asked: If they didn't change the proposal or do a much better job in selling it, why go through it again? He suggested it would be a step in the right direction to change the proposal, without altering or diminishing its intent and purpose, to overcome an impression that the legislature is seeking irrational power. REPRESENTATIVE PORTER also suggested it wouldn't be prudent to allow the legislature to go into the intent of the legislature that wrote the statute enabling a regulation in question; that is a road that court decisions have been down repeatedly. However, he didn't think it improper at all for a legislature to come up with its own finding that a regulation is inconsistent with its enabling law. That is the job of the legislature. Number 0930 REPRESENTATIVE CROFT said he would echo Representative Porter's comments. Specifically, this had been rejected three times, and it did not seem productive to try a fourth time. He agreed that it is within the legislature's province to express its opinion that a regulation does not implement a statute, and he mentioned the possibility of having some substantive effect on the regulation. REPRESENTATIVE CROFT said Legislative Research had, at his request, looked at other states that use this idea of shifting the burden of proof, allowing the legislature to say, "That's not what we meant." Then, if it is challenged, a court can look at it. In most situations, the shift in the burden of proof might be dispositive. However, a court could determine that a regulation falls within the authority of the statute and that the rejection was for some other, possibly political, reason. The five states which do that are Iowa, Montana, New Hampshire, North Dakota and Vermont; all upheld it to be constitutional, "some with constitutional change authorizing that burden shift, some without it." REPRESENTATIVE CROFT stated, "I think the courts have determined uniformly, not only in the A.L.I.V.E. case in Alaska but in federal decisions limiting the federal Congress from doing this, in the federal arena, that ... changing regulations by legislative action that has no governor's veto is stepping beyond our sphere of power. So, I'd be interested in pursuing alternatives that maybe don't go this step for the fourth time." Number 1070 REPRESENTATIVE JEANNETTE JAMES, also a sponsor of HJR 2, apologized for her late arrival. She expressed appreciation for Representative Croft's comments, then said the legislature can currently void a regulation with a statute. However, if their efforts to get the Administration to change a regulation had failed, why would a governor sign a statute that got rid of it? She said the legislature gave the Administration the power to write regulations but now has nothing to say about them because of the separation of powers. The legislature historically has written skimpy laws that require departments to implement regulations. "And then, when they do it, we don't like it," she added. REPRESENTATIVE JAMES indicated she has trepidation about putting this out to the public for a vote; however, she believes it was not properly "sold" previously and perhaps needs some different language. She had just filed another bill on negotiated rule- making, which she believes has more merit and which may or may not take care of this problem. She desires a multi-pronged approach. REPRESENTATIVE JAMES said she had not read the "pros and cons" on the voter pamphlets for previous resolutions but suspects those could do a better job of explaining the reason this is needed. In addition, she believes the public is becoming more irritated about regulations and may now have a different attitude. Therefore, she would like to see this put on the ballot, although she does not believe it is the "end-all, save-all" to problems with regulations. Number 1265 JAMES BALDWIN, Assistant Attorney General, Governmental Affairs Section, Civil Division (Juneau), Department of Law, came forward to reaffirm the Administration's opposition to HJR 2. He stated that many of the points had already been made and he would re- emphasize a couple of them. MR. BALDWIN explained that currently a legislative veto only occurs in the constitution in two areas: in the power to disapprove executive orders and in the power to disapprove boundary changes proposed by the boundary commission. Noting that executive orders involve reorganization and boundary changes are a legislative function, he said both involve a power to change the law. MR. BALDWIN contrasted that with regulations, which, if properly done, merely implement or make specific the law. A legislative veto in that area departs from the constitutional scheme, a set of checks and balances carefully designed at statehood to ensure that in certain crucial areas, one branch of government does not have an overbalance of power. A device in existence since the kings of England and perhaps beyond, a veto is basically intended to preserve the integrity of the branch of government in which the veto power rests; maintain equilibrium between branches; and act as a check to hasty and ill-conceived legislation. MR. BALDWIN restated that legislation changes the law. For a regulation, which does not change the law, this apparent departure from our scheme has no check on its exercise. Resolutions under the U.S. constitution can be vetoed by the President; such vetoes can be overridden, which is a check on the veto power. However, under Alaska's constitution, resolutions are not vetoed. If a resolution basically vetoes a regulation, what is the check on that power? MR. BALDWIN said that is precisely the item that has been used against the legislature's desires here in the last three elections. To the voters, it has been successfully characterized as a power grab by the legislature, an attempt to get a step up in the process. He stated, "It doesn't make you look good; it doesn't make the institution of the legislature look good; it doesn't really bring good repute to the institution of the legislature." MR. BALDWIN said he didn't know that he could agree with everything Representative Porter had said. However, he did believe that in order to establish that high ground, something else should be done rather than just going with what happened in the past; he did not know what that should be. MR. BALDWIN stated, "Beyond that, I would say the best approach is the approach we have now, which is we, being state agencies or state entities, are basically `creatures of statute.' And if you don't like the way your creature is created, you can always go back to the laboratory and redesign it and in that way affect how we exercise the regulation-adoption power. So, I think there now is an adequate check ... and a balance between the branches. And I fear that going with the resolution that's before you would unbalance the system. And for that reason, I think it should not be passed out of this committee." Number 1525 REPRESENTATIVE PORTER said currently if the legislature writes a statute that requires regulations to be written, and if it subsequently decides that those regulations are not what was envisioned, it has the ability to repeal the statute. He asked whether that was not virtually the same thing being proposed here. MR. BALDWIN said no, the process is much different. For example, it is by rule and not by the constitution that three readings of a resolution are required. That is not the same as for a law. REPRESENTATIVE PORTER said he was talking about the product. MR. BALDWIN agreed with the characterization of this as a veto and said, "It's just a flat `no.' It doesn't really give much guidance beyond, `We don't like what you've done; go back and do it again.'" In contrast, when a statute is passed, the agencies are directed in their conduct and must conform to that. Number 1605 REPRESENTATIVE PORTER asked why Mr. Baldwin thinks this would be unconstitutional, based on the veto power of the legislature, when in effect the legislature already has that power to repeal the statute from which the regulation was generated. MR. BALDWIN replied, "First of all, if you put it in the constitution, it wouldn't be unconstitutional. So, I think you're going about it in the correct way, by changing the constitution. I think the way they went about it in the statutes, that led up to the A.L.I.V.E. case, that was unconstitutional." MR. BALDWIN said as a functional approach to government, he believes it would be wrong because it unbalances the system of checks and balances. What would be the check on the legislature's power? Although legislators may like it, he himself did not, nor did he believe the populace had liked it, according to the votes. REPRESENTATIVE PORTER said the only check on the legislature's power to create law is constitutional. He suggested that Mr. Baldwin was talking public policy. MR. BALDWIN agreed. Number 1667 REPRESENTATIVE CON BUNDE emphasized that in repealing a regulation, a statute can be vetoed, whereas a resolution cannot. REPRESENTATIVE JAMES suggested that if it did not like a regulation, the legislature could better define what was meant in statute. She mentioned the A.L.I.V.E. case, the subsequent inactivity of the Administrative Regulation Review Committee until this year, and the Administrative Procedure Act (APA). She asked: When the legislature gave authority to the Administration to write regulations, could they have given it only partially, with some kind of oversight? She said one suggestion was the requirement that the sponsor of legislation which is being written into regulations participate in that process. Number 1756 MR. BALDWIN said while there are things that can be done as far as limiting the delegation, those kinds of actions are also subject to the constitution. For example, if a bill sponsor participated in a regulation-adoption process, in effect that legislator would be using law-making powers outside of the House or Senate chamber. Because a legislator cannot act as an individual representative with law-making power, such a delegation may be invalid. However, availability to consult or advise may be valid, and it is probably good for the agencies, to be aware of legislative intent. MR. BALDWIN indicated that oversight, including use of an auditor, for example, is an appropriate role for the Administrative Regulation Review Committee, which makes its will felt to the agencies involved in adopting regulations. Number 1835 REPRESENTATIVE CROFT asked whether it was a general principle that the legislature could not have a "veto" without amending the constitution. MR. BALDWIN replied, "Well, in the A.L.I.V.E. case, the court looked at the two vetoes that I mentioned and believed that because of the way the constitution was written and the debate at the time, that any other attempt to add a legislative veto would be strictly construed. In other words, it'd be very difficult to establish." MR. BALDWIN said certain kinds of actions may be valid. For example, that day the legislative finance committees were reviewing leases of office buildings, "which is, in effect, a sort of a veto, but it's sort of like a check-back-with-me-type of an action, you know, where you go out there and you say, `You can enter into leases but you've got to check back for more authority before you complete the lease.' It isn't like a denial or a veto, but it's like, `We'll give you part of the power now, and when you go out and do the job, we'll give you the rest if we like the deal you bring to us.' ... It's sort of like a veto, but there have been cases upholding those kinds of activities in other states; we haven't had a case in Alaska yet, but we certainly do those sorts of things and transact that kind of business." Number 1904 REPRESENTATIVE JAMES, noting that timing would be a problem, asked whether it would be appropriate, when the legislature gives authority to the Administration to write regulations, to specify that those regulations must be approved by the legislature. They would thus be done by statute and subject to a veto. MR. BALDWIN said he wanted to confer with the department's regulations attorney before providing an answer. REPRESENTATIVE JAMES indicated her point was to explore all the alternatives. PAMELA LaBOLLE, President, Alaska State Chamber of Commerce, came forward to testify in support of HJR 2. She advised members that regulatory reform is one of her organization's highest priorities. Their resolution requests an effective oversight mechanism to ensure that regulations produce results that follow legislative intent. MS. LaBOLLE said a common complaint of the business community is that too often, regulations ignore or miss the point of the legislation. She believes that people do not have as great an opportunity for effective input in the regulatory process as they do in the legislative process. For that reason, and because regulations carry the weight of law, her organization believes this is an important concern. She agreed with Representative Porter that it is important to state the legislature's intention. She also believes that the public supports this concept. Number 2041 REPRESENTATIVE ROKEBERG asked what the position of the Alaska State Chamber of Commerce had been on the prior ballot propositions. MS. LaBOLLE said that was before her time and she did not know how involved the organization had been. She added, "However, last year, when this was HJR 1, we did testify to the effect that should this become a ballot proposition, we would actively work in support ... of the proposition." Number 2088 REPRESENTATIVE CROFT asked whether the chamber was open to any reasonable way that the legislature could develop an effective oversight mechanism or whether this was the only mechanism they supported. MS. LaBOLLE responded that they were open to any and all ways. This seemed to answer the need, but another answer would be welcome. CHAIRMAN GREEN asked whether anyone else wished to testify, then closed public testimony. REPRESENTATIVE CROFT offered Amendment 1, a hand-revised copy of 0- LS0120\E.1, Bannister, 4/30/97. The original version read: Page 1, line 2: Delete "repeal of regulations by the legislature" Insert "the burden of proof in a judicial proceeding for the review or enforcement of regulations" Page 1, line 6: Delete "Repeal" Insert "Review and Enforcement" Following "Regulations." through line 9: Delete all material. Insert "In a judicial proceeding for the review or enforcement of a regulation, the burden is on the agency that adopted the regulation to establish that all or part of the regulation is within the procedural and substantive authority delegated by the legislature to the agency." REPRESENTATIVE JAMES objected. REPRESENTATIVE CROFT apologized for the rough-hewn nature of it, saying he had described what he wanted to the drafters but it had not quite come through. He explained the amendment, as revised. It leaves the first sentence of the resolution as-is. On page 1, line 7, the first "repeal" would be replaced by "express disapproval of". Therefore, beginning page 1, line 6, it would read, "The legislature may, by joint resolution, express disapproval of a regulation adopted by a State department or agency." REPRESENTATIVE CROFT continued. Beginning at page 1, line 7, following "agency.", the second sentence (through line 9) would be replaced by, "In a judicial proceeding for the review or enforcement of a regulation disapproved by the legislature, the burden is on the agency that adopted the regulation to establish that all or part of the regulation is within the procedural and substantive authority delegated by the legislature to the agency." REPRESENTATIVE CROFT explained that this would set up an alternative to an outright repeal. A resolution by the legislature, which would not require a governor's signature, would stated that a regulation did not follow legislative intent. It would change the burden of proof on that point. For example, if an affected industry complained about a regulation, the industry would have the burden of proof. After the legislature passed a resolution saying, "That's not what we meant," the agency would have the burden of proof in defending its regulation. REPRESENTATIVE CROFT said five states already do this, "some with constitutional change, as this would allow, some without it; so, there is some reason to think we could do this statutorily." An interesting half-step, it was of particular interest to him because it seemed to put everyone in their proper role: The legislature discusses statutes and their scope; the Administration interprets and writes regulations within that scope; and if there is disagreement about whether a regulation is within the proper scope of a statute, the judicial branch has been the arbiter in 200 years of U.S. history. Representative Croft added, "And this would allow us to have a voice, changing the impact on that judicial determination, but not an outright veto." REPRESENTATIVE CROFT said he had discussed this with Representative James, who was open to some of these ideas but may not want this in her legislation. However, he believed this alternative approach would be more palatable to Alaskans and more in keeping with the constitutional roles, yet still give the legislature an effective oversight mechanism on regulations. Number 2303 CHAIRMAN GREEN asked whether the intent was that there be a two- step process if the legislature could not persuade the writer of the regulation that it missed the boat. REPRESENTATIVE CROFT said there would be two options if they disliked a regulation. They could try to change it by statute or do this, simply repeal it. Number 2348 CHAIRMAN GREEN clarified that if an agency defended its regulations, then the legislature would not have changed the regulation unless it took a second step. REPRESENTATIVE CROFT agreed and said he had missed that point. In that case, the legislature would say, "This is not what we meant," and then there would be a judicial finding. He believed that the judiciary would often agree with the legislature's determination. REPRESENTATIVE CROFT said he envisioned a situation where the legislature made a political statement by resolution and the court determined that even with the burden of proof, a regulation clearly fell within statutory authority. "And so, we would be affecting but not repealing regulation, and then our only option after that would be to change it by the normal process," he concluded. Number 2415 REPRESENTATIVE PORTER said he would not think it appropriate to set up a situation where the courts would be involved in each and every dispute over a statute's interpretation in regulation. To him, the Administration's ability to veto the legislature's veto was not required. While he understood the rationale, it may set up a procedure as protracted as the procedure for repealing the statute. TAPE 97-72, SIDE B Number 0006 REPRESENTATIVE JAMES said she tended to agree with that. She believed the amendment did nothing but destroy the resolution and its intent. She also believed that was already an opportunity. From her own experience, only a small part of the regulation problems she had viewed in the past five years involved regulations that did not follow the legislative intent; the problem is primarily because of legislation written insufficiently, with regulations written too broadly to implement a narrow section. After a regulation is written, it doesn't work "on the ground" because the people who wrote it aren't working there. REPRESENTATIVE JAMES said the other problem is in the APA, which outlines how regulations are promulgated and the public process. The notice states what the public comment period will be and how it will be handled, specifying that following that period, the department can "change the regulations, leave them just like they are, or do nothing." Therefore, the public process is a sham. The people affected by the regulations have had their word, but it has meant nothing because it did not change the way the regulations were written. She cited current airport regulations as an example. REPRESENTATIVE JAMES restated that negotiated rule-making might be a good idea. In the meantime, she wants to have this out there, like it is, until 1998, to get it on the ballot. An option that other states have used as well, it is easier, quicker, and a "hammer" for the legislature that she believes would make a difference in how agencies discuss these issues with the public and the legislature. She indicated the legislature's only current hammer was more like a padded xylophone stick, with little effect. Even if it were never used, she believes having it will make a difference in the way that agencies discuss these issues with the public and the legislature. That is why she was willing to put this out there, even though she doesn't think it is the solution. Number 0148 REPRESENTATIVE ROKEBERG said he was tempted to ask for a ruling of the chair that Amendment 1 was out of order. It rewrites the resolution, except for a few words in the title, is not artfully constructed and speaks to a disapproval by the legislature of a process that it has no ability to disapprove. He said it is beyond hostile and kind of nonsense. CHAIRMAN GREEN said he would not rule it out of order. Number 0203 REPRESENTATIVE CROFT acknowledged that it was not artful. He emphasized that it changed the resolution from a repeal to a disapproval, moderating that effect. His intention was not to gut the resolution but to find middle ground, acceptable to the public, in the power continuum. REPRESENTATIVE CROFT referred to Representative Porter's comments and said although this is aimed at a judiciary solution, he didn't see that coming into play in every dispute, nor did he want that. There would continue to be the other "hammer" of a legislative action, although it would have to survive a governor's veto. He suggested that if the legislature went through the trouble of a resolution disapproving a regulation, the most frequent result would be spurring the agency to take a look at it. "They would have their position weakened by our action and, therefore, would take action themselves, we would hope," he concluded. Number 0270 REPRESENTATIVE ROKEBERG suggested that Representative Croft introduce legislation relating to shifting the burden of proof, which would not require a constitutional amendment. He said he believes this is out of order because the resolution is for a constitutional amendment. CHAIRMAN GREEN asked whether the objection was maintained. REPRESENTATIVE JAMES said yes. CHAIRMAN GREEN requested a roll call vote. Voting for Amendment 1 were Representatives Croft and Berkowitz. Voting against it were Representatives Bunde, Porter, Rokeberg, James and Green. Therefore, Amendment 1 failed, 5 to 2. Number 0327 REPRESENTATIVE PORTER advised members that he had also drafted an amendment, which he would give to the sponsor to think about until the next committee of referral. He explained, "I think it would be appropriate to put something into this that will tell the voters, first of all, and, of course, the courts, when they are looking at this issue, what it is that we're endeavoring to do when we ... would reject a regulation." He said he believed it could be done between this committee and the House Finance Committee. REPRESENTATIVE PORTER made a motion to move HJR 2 from committee with individual recommendations and fiscal note as attached. CHAIRMAN GREEN objected for discussion purposes. He asked Representative Porter to share the concept of his suggestion. Number 0380 REPRESENTATIVE PORTER prefaced his response by saying he had not yet thought it through. However, his concept was language that would read "something to the effect, `The legislature may, after finding that a regulation is inconsistent with its enabling law, by joint resolution repeal a regulation adopted by a state agency -- or a state department or agency.'" Number 0400 REPRESENTATIVE ROKEBERG pledged to work with the prime cosponsor to ensure that the language clearly conveys to the public the legislature's intentions regarding the ballot proposition. He also offered to work towards coming up with ameliorating language to meet the points made by the committee. Number 0431 REPRESENTATIVE BERKOWITZ said if they were going to amend it, he believed the responsibility was on the present committee to do so. Noting that the public had rejected it three times, he urged that they hold this until there was an amendment to contemplate. CHAIRMAN GREEN called a brief at-ease, then called the meeting back to order. REPRESENTATIVE PORTER offered Amendment 2. CHAIRMAN GREEN asked whether Representative Porter was rescinding his motion to move the resolution from committee. REPRESENTATIVE PORTER replied that with permission of the committee, he would remove the motion to move the resolution and instead offer Amendment 2, "which for the record would be on page 1, line 6, after the phrase `the legislature may', insert `, after their finding that a regulation is inconsistent with its enabling law,' and then continue, `by joint resolution'." Number 0521 REPRESENTATIVE JAMES said that "sort of incorporates" the opportunity in Representative Croft's amendment. If it includes the reason that the legislature can do a resolution to annul a regulation, and if the Administration disagrees with that resolution, they can take it to the judiciary and dispute it or else redo the regulation. She believes it makes for an equal playing field and provides a hammer, although not a huge one. REPRESENTATIVE CROFT stated his understanding that this would be the legislature's power to question whether the regulation was within the enabling statute; the legislature could not repeal regulations within the statute just because they did not like them. REPRESENTATIVE JAMES concurred. CHAIRMAN GREEN commented that it effectively did what Representative Croft had in mind. REPRESENTATIVE CROFT asked whether Representative James believed that a court could determine that. REPRESENTATIVE JAMES responded, "We give them everything, don't we? Do we care if they come out right with it or not? I don't always agree with them, but, you know, they're the final word." Number 0577 REPRESENTATIVE ROKEBERG suggested because this would be in the form of a constitutional amendment, the courts would be reluctant to override the legislature's finding that it was inconsistent. He said this narrows the scope of the previous amendment but does no "bodily harm." He added, "It may actually enhance it. I think as the resolution passes through the building that that is an issue that will, and should, be discussed further." REPRESENTATIVE JAMES said that certainly the finding would be part of the back-up for the resolution, and there would be plenty of time for dispute while it goes through the process. CHAIRMAN GREEN asked whether there was any objection to Amendment 2. There being none, Amendment 2 was adopted. REPRESENTATIVE PORTER made a motion that HJR 2, as amended, move from committee with individual recommendations and fiscal note as attached. There being no objection, CSHJR 2(JUD) moved from the House Judiciary Standing Committee.
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