Sunday, March 18, 2012

Wrangling about Rules. It hasn't been an issue that has been center stage during the 2012 Legislative Session, but the tension that exists between the Legislative and Executive branches over the appropriate role each assumes in the making of policy has been prevalent and is showing up in several pieces of proposed legislation.

This has been a longstanding issue that has existed between branches of government dating back to the early days of the Republic and tension over it has exacerbated over the past decade given unpopular decisions at the national level as they relate to foreign policy and health care and at the state level with recent executive branch decisions relating to the rating of childcare systems. There are other examples with bipartisan perpetration, but those are the most visible ones that pop into my head.

The debate has found its way into the Education Committees of the House and Senate with hearings on SF 2183 (Thompson-R-Lakeville)/HF 2596 (Doepke-R-Orono). These bills seek to put an end to what is considered by some to be unwarranted action taken by the Minnesota Department of Education (MDE) in the application of state and federal policy. There are instances when MDE has issued a memorandum as a result of a complaint (usually in the area of special education) or pronounced an interpretation of state or federal law (across a wider range of issues) and these actions have the force of law. It is different when MDE has to undergo rule-making in conjunction with legislation, as that is directed by an initial legislative action.

What bothers legislators (of both parties I might add) is that when MDE issues a ruling in other forms, it can be done without legislative input or the seeking of legislative intent. In other words, it's the making of law by people without election certificates. One can argue that all members of the Administrative branch of government "share" in the Governor's election certificate, but that is a bit of a stretch when it comes to this process. There is a big difference between the execution of laws (the "how) and the laws themselves (the "what").

From my vantage point, one of the primary reasons for tension this year between the Legislature and the Governor on education policy stems from the successful waiver request made by MDE to the Federal Government to get out from under many of the more punitive aspects of No Child Left Behind. Some legislators view this as a clear end-run by the Governor's office around a number of accountability measures that provide necessary information relating to school performance. There have been several bills discussed by which the Legislature would mold the program submitted to and accepted by the United States' Department of Education, but good luck getting the Governor to sign any of them.

I testified as part of spirited hearings in both the House and Senate on SF 2183/HF 2596. I believe there are appropriate times for MDE to interpret legislation, but the problem is there has been very little consultation with the Legislature when these interpretations are made and some of the decisions, most notably the decision to declare the use of prone restraint as illegal, were both an inappropriate exercise of agency power in the making of law and a gross misreading of the statute in question. Greater transparency should be the goal of the law-making process and while both the Executive and Legislative branches have important roles to play in how policy is developed, both branches also have appropriate roles that they need to assume and not go beyond. I know I'm sounding like a junior high school civics teacher (they still teach civics don't they?), but I truly believe one of the frustrations with the voting public is that the development of the current network of laws, rules, and regulations is extremely difficult to follow.

I've provided a couple of links on this issue:

Story from House of Representatives' March 9, 2012, edition of Session Weekly discussing legislative desire to curb Executive Branch rulemaking (story starts on page 3):

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