Separation of Powers--Legislative Oversight
- Brenda Erickson
- Kae Warnock
- If you have any questions, please contact Kae or Brenda in NCSL's Denver office at (303) 364-7700. Also, please email us if you would like to recommend legislative resources or case law that may enhance the Separation of Powers website.
Oversight in General
During the past three decades, legislatures have enhanced their capacity to play a more active role in the policymaking process. They have asserted their independence from the governor, assumed a greater responsibility in formulating policy, and more actively oversee the operations of the executive branch.
Legislative oversight takes many forms. Most often, legislative standing committees are responsible for continuous review of the work of the state agencies in their subject areas. Legislatures also have created special committees or staff agencies designed specifically to evaluate agency operation and performance. In addition, legislatures may review (and sometimes, veto) the rules and regulations developed by executive agencies to implement law.
Legislative oversight is a fundamental check and balance. As states have assumed greater responsibilities for government programs and services, the importance of legislative oversight has increased. More active legislative involvement, however, may increase frictions with the executive branch.
Legislative Program or Performance Evaluation
The development of program evaluation capabilities was a key component in the evolution of the modern state legislature, and most program evaluation offices have been in operation for more than 25 years.
A performance audit or evaluation is a comprehensive examination of an organization, program or activity conducted by an independent evaluator to assess efficient use of resources or effectiveness. Legislative program evaluation helps legislatures to ensure that the programs they establish and fund are operating efficiently, effectively, and economically.
Legislative Veto of Administrative Rules
An administrative rule is typically a regulation, standard or policy issued by an executive agency to implement statutory provisions administered by the agency. In many states, the number of regulations promulgated by executive agencies exceeds the number of statutes enacted by the legislature.
Although state legislatures have delegated that authority to executive agencies, they have carefully protected their authority to review and, in most instances, approve administrative rules to ensure that they comply with statutory authority and legislative intent. If the legislature determines that a rule does not comply with those two thresholds, it may be empowered by constitutional provision or statute to veto the rule.
Forty-one states have some type of authority to review administrative rules, although not all of them have the power to veto rules. In the states that have veto authority, the action may be required through enactment of a statute (13 states) or passage of a resolution (15 states). State courts have heard challenges to legislative veto of administrative rules in at least 11 states, with all but two ruling that the power—or the process being used—was unconstitutional. Court decisions in Idaho and Missouri illustrate the differing perspectives.
In Mead v. Arnell, 791 P.2d 410 (Idaho 1990), the Idaho Supreme Court upheld the authority of the legislature to veto administrative rules through passage of a resolution that did not require the governor's signature. The court determined that only the legislature can make laws and that administrative rules have a lesser status than statutory law, thereby allowing a statute that authorized a veto through legislative resolution to stand.
In Missouri Coalition for the Environment v. Joint Committee on Administrative Rules, 948 S.W.2d 125 (Mo. 1997), the Missouri Supreme Court ruled unconstitutional a statute that suspended agency rules pending review by the Joint Committee on Administrative Rules. The court determined that the legislature "may not unilaterally control execution of rulemaking authority after its delegation of rulemaking power," requiring it to pass a bill for the governor's signature if it chose to alter a rule.
Florida: Scott Boyd, Legislative Checks in Rulemaking under Florida's New APA, 24 Fla. St. U. L. Rev. 309 (1997)
NCSL: LegisBrief Vol. 13, No. 45, "Legislative Oversight in the States," November/December 2005
NCSL: Legislative Review of Administrative Rules and Regulations, 1990
NLPES: Ensuring the Public Trust, various editions
North Carolina: Charlotte A. Mitchell, The North Carolina Rules Review Commission: A Constitutional Quandary, 82 N.C.L. Rev. 2092 (2004).
Oversight and Insight: Legislative Review of Agencies and Lessons from the States, 121 Harv. L. Rev. 613 (2007).
Rossi, Jim. Institutional Design and the Lingering Legacy of Antifederalist Separation of Powers Ideals in the States, 52 Vand. L. Rev. 1167 (1999).
Wisconsin: Wisconsin Legislative Council, "Administrative Rules"
Wisconsin: Attorney General's Opinion OAG 3-85, "Confidential Records; Public Records," 1985
Federal: INS v. Chadha , 462 U.S. 919 (1983)
Federal: Tenney v. Brandhove, 341 U.S. 367 (1951)
Alaska: State v. A.L.I.V.E. Voluntary, 606 p.2d 769 (Alaska 1980)
Connecticut: Maloney v. Pac, 439 A.2d 349 (Conn. 1981)
District of Columbia: Gary v. United States, 499 A.2d815 (D.C. App. 1985)
Idaho: Mead v. Arnell, 791 P.2d 410 (Idaho 1990)
Kansas: State ex rel. Stephen v. House of Representatives, 687 P.2d 622 (Kan. 1984)
Kentucky: Legislative Research Commission ex rel. v. Brown, 664 S.W.2d 907 (KY 1984)
Missouri: Missouri Coalition for the Environment v. Joint Committee on Administrative Rules, 948 S.W.2d 125 (Mo. 1997)
Montana: Montana Taxpayers' Association v. Department of Revenue, No. 47126 (Mont., Lewis and Clark City, 18 March 1982)
New Hampshire: Opinion of the Justices, 121 N.H. 552 (1981) 431 A. 2d 783
New Jersey: Enourato v. New Jersey Building Authority, 448 A.2d 449 (N.J. 1982).
New Jersey: General Assembly of New Jersey v. Byrne, 90 N.J. 376, 448 A.2d 438 (N.J. 1982)
West Virginia: State ex rel. Barker v. Manchin, 167 W. Va. 155, 279 S.E.2d 622 (W. Va. 1981)
Receiving Information or Recommending Additions
If you have any questions, please contact Kae Warnock or Brenda Erickson in NCSL's Denver office at (303) 364-7700. Also, please contact Kae or Brenda if you would like to recommend legislative resources or case that may enhance the Separation of Powers website.