By SHELLEY DAVIS

THE JOINT Committee on Administrative Rules (JCAR) may face a suit challenging its new power to suspend rules made by executive branch agencies. Or again, it may not.

John Lynch, a counsel to Gov. James R. Thompson, said whether the executive branch agencies go to court to challenge the constitutionality of the suspension power will depend on "judicious and careful exercise of the power. If it is done cautiously, we are not going to run into court. If it is being done haphazardly or is restricting the agency's ability to administer the law, then we will go to court."

Ken Mitchell, assistant executive director of the JCAR, said there have been "rumors" concerning the possibility of court action the first time the committee suspends an agency's rule. He feels, however, the committee will not abuse its new power and "run out and suspend rules without reason. In a case where it might be used, I think the agency will realize that there is a serious controversy and welcome having consideration [of the rule] by the full General Assembly."

The power to suspend an agency's rules was granted to the committee after both houses of the General Assembly overwhelmingly overrode Thompson's veto of that portion of H.B. 2351 last fall. Previously, the legislative committee had the power to review proposed rules made by executive agencies, but only to make recommendations if problems with the rules were found. It had no power to force the agencies to adopt those recommendations. In fact, Mitchell said in 1980, the agencies simply ignored JCAR objections in most cases, entirely disregarding committee recommendations for rule changes.

The new power given the committee under P.A. 81-1514, however, will give it additional leverage in dealing with the agencies, forcing the agencies to take a harder look at the recommendations made by the committee. If the JCAR decides that a proposed rule either exceeds statutory authority or poses a serious threat to the public's interest, welfare or safety, the committee can by a three-fifths vote (10 of its 16 members) suspend the rule for 180 days. The General Assembly can either concur with the committee by passing a joint resolution within the 180 days to repeal the rule, or disagree by taking no action within this time frame, thus allowing the rule to take effect.

Although Thompson is all for the concept of legislative oversight (he supported the Administrative Procedures Act (APA) passed in 1977 that created the JCAR), he stated in a letter to legislators last fall that this suspension power constitutes "a serious and unwarranted intrusion by the General Assembly and one of its committees into areas properly reserved to the executive and judicial branches of government." Thompson and other opponents point to two constitutional problems that the suspension power poses — violation of the separation of powers doctrine and disregard of legislation by bill.

Jeremiah Marsh, chairman of the Administrative Rules Commission that was created by Thompson after the passage of the APA, said last fall in a letter to the governor that this suspension power would allow the committee to "usurp agency policy decisions and directly assume executive branch powers without enacting a law." He also pointed out that the APA already provides for legislative veto of agency rules by bills. Just because that power has not been used extensively in the past, he said, is not "sufficient justification" for permitting the veto of agency rules by joint resolution instead.

Marsh said that the committee's suspension power represents an "unconstitutional delegation of legislative power." He pointed out that in February 1980 the Alaska Supreme Court found a similar statute allowing legislative veto by joint resolution unconstitutional.

Which branch interprets?
Another question that the power to suspend agency rules brings up is whether legislators have the expertise to challenge agency rules. Saul Morse, vice chairman of Section Council on Administrative Law for the American Bar Association, said the major change this power will have is in determining who decides which laws and regulations are appropriate. "The question is whether the legislature is stepping on the executive toes in an area that is really administrative, and also, is the legislature trying to substitute its judgment for the courts. [Interpreting the law] is an area rightly left to the courts," he said.

Proponents, on the other hand, hold to the adage that what the legislature

giveth, the legislature can keep track of. Sen. Prescott Bloom (R., Peoria) chairman of the JCAR, said authority of agencies to make rules is delegated to them by the legislature. As such, "the decisions [agencies] make should be subject to review,'' he said. "If rule-making is deficient, there should be some form of power to rectify overregulation or excessive regulation."

Mitchell agrees, saying, "It is really a lawmaking function delegated to an agency in legislation in order to take care of details not bothered with in the law. It is not inherently an executive function to make rules and regulations."                 

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"The point is," he continued, "that the legislature feels it has lost contact with policymaking. It [the veto power] is an important attempt to reassert what I consider to be proper legislative control over lawmaking."

Lynch, however, said he is bothered by the fact that the suspension power can affect "perfectly valid rules" allowed under statute. He suggests that if the legislature encounters problems with regulations consistent with the statute, then it should go back and change the law. "Rather than having a joint resolution, they should do what they do now," he said. "Amend legislation to make it clear. You can't back door it like that... it comes, in effect, after the fact."

Some agencies (there are about 150 commissions, boards, departments or individual officers that are affected by the JCAR) feel that the committee is unfairly whittling away power that is rightfully theirs. They also question the committee's expertise and ability in approving or disapproving rules. Morse said it is often hard to determine how the legislature makes decisions because its "rationale is not always based on the law but on the perception of what the people want or on social planning."

Do agencies know best?
Bloom dismisses the fears of the agencies as "foolish and against the public interest." He said he doesn't believe the agencies always "know best," and feels that "a good agency director will use the rule review as a good management tool."

Where the first blow will fall from what Bloom calls the committee's "modest hammer" remains to be seen. Observers predict it may be in a department such as Public Aid, Public Health or Revenue, where many rules are made, and so are most affected by the JCAR. Regardless of who will feel the pinch of the suspension power first, both proponents and opponents agree that it will have to be a serious and clear-cut case to result in a court battle.

"You will have to pick a major issue to guarantee that the court will address the major issue of [the constitutionality of the veto power] and not the technicalities," Morse said. He added that the court will address a constitutional issue only as "an absolute last resort." Without a case where the suspension power clearly has been used to excess or to bottle up government, Morse said, the court may just look at the immediate issue before it and say that the veto power can be used, but used sparingly.

While Mitchell says he hopes the threat of a possible suspension of a rule will make the agencies "more careful" in constructing regulations, Lynch says he hopes it will make the JCAR "careful" and use its suspension power judiciously. "It is an awesome power to give, especially to 10 legislators," he said. "It comes awfully close to putting them into the executive branch."□

12/June 1981/Illinois Issues