Dynar: Arizona Agencies Shouldn’t Transfer Power to Washington, DC

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By Adi Dynar, Pacific Legal Foundation

An otherwise routine Arizona Supreme Court case has become the focal point for deciding the constitutionality of a state agency practice called “incorporation by reference.”

This happens when state agencies adopt rules written by federal agencies or private groups, making them Arizona law.

The constitutionality of “incorporation by reference” was raised in a case called Clinton Roberts et al. vs. Arizona, pending in the Supreme Court of Arizona. The main question is whether employer-mandated security screenings are considered “work”.

State prison officers say they are entitled to overtime for the time they spend in the security lines they cross every day on their way to work. The state says the overtime clock doesn’t start until they’re at work. Both sides look to federal law to answer that question.

This is where things start to get interesting – and unconstitutional. The Arizona legislature never said the agency could import federal standards into state law.

In December, the court took the unusual step of ordering the parties to settle an issue that neither party has an interest in resolving: is it legal for the Department of Administration to basically pass a federal law – otherwise known as incorporation by reference – to answer these questions?

The answer should be no.

Like those of all states and the federal government, the Arizona Constitution requires that the powers of government be separate and that one branch cannot properly perform the functions belonging to another department. When agencies enact laws that are not enacted by the Arizona Legislature, it violates the separation of powers provision of the Arizona Constitution.

My firm, Pacific Legal Foundation, argues in an amicus curiae brief that such incorporation removes legislative power from the legislature and places it in the hands of unelected and unaccountable bureaucrats.

The practice went wild in Arizona. Our searches show over 200 separate incorporations per reference. These incorporations touch on a wide variety of topics – from education, professional licensing, agriculture and the environment to social safety net programs, healthcare, transportation and government employee salaries.

Through incorporation by reference, unaccountable, unelected bureaucrats in Arizona outsource state legislative power to unaccountable, unelected federal bureaucrats or private industry groups. The Arizona Supreme Court should put an end to this practice. But the state legislature can — and should — do it, too.

The Arizona Constitution divides functions among three departments – legislative, executive, and judiciary – and requires that no department perform functions “belonging by right” to another department. When an executive agency makes rules, there is no doubt that it is performing the legislative function — which is proper to the legislature. Executive legislation is very different from legislative legislation in its structure, substance and process.

It is a transparent fiction that the Executive Department “executes” the law whenever it issues rules in the exercise of delegated “legislative” power. An executive agency does more than just “execute” the law when it chooses policies and imposes policy choices in the form of rules.

This fiction is inconsistent with the Arizona Constitution’s guarantee that Arizonans will be governed by laws enacted by the legislature or by initiative or referendum.

State legislators should protect their legislative authority as carefully as the Arizona Supreme Court polices the boundaries between the three branches of state government. One reason is to ensure that the laws that people are bound to follow are based on the consent of the governed.

Another reason is to ensure that legislators remain accountable to the people. Bureaucrats are not accountable to the people. Following the separation of powers of the Arizona constitution, the people have a say in the enactment of state laws.

It’s bad enough that an unelected state official in Phoenix thinks he’s authorized to make laws. The practice of incorporation by reference is worse because the state official transfers state legislative power to an unelected bureaucrat in Washington, D.C.

It can’t be right.

Either the Arizona Supreme Court in the case of correctional officers or the legislature more generally should end the abuse of power inherent in the practice of incorporation by reference.

Editor’s Note: Adi Dynar is an attorney at the Pacific Legal Foundation, a nonprofit legal organization.

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