The Legislative Veto in Illinois: Why JCAR Review of Agency Rulemaking is Unconstitutional
Falkoff, Marc D.
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This Article argues that legislative vetoes of administrative agency rulemaking in Illinois are unlawful under the state’s constitution. It focuses on the Joint Committee on Administrative Rules (“JCAR”), a bipartisan legislative committee that is authorized to review rules promulgated by administrative agencies in the executive branch. Since 2004, JCAR has possessed veto power over agency rulemaking, meaning that the committee may permanently stop implementation of new rules upon the vote of three-fifths of its twelve members. For even longer, the Illinois General Assembly has been authorized to block implementation of agency rules through passage of joint resolutions, which do not require presentment to the Governor for a potential executive veto. The Illinois courts have not yet ruled on the constitutionality of the legislative veto, though it has been part of the state’s legal landscape since 1981. Legislative veto schemes have been challenged in the federal system and in more than a dozen states, and in every instance (except one) have been deemed unconstitutional violations of separation of powers principles, or else have been struck down for failing to comply with constitutional bicameralism and/or presentment requirements. No scheme that grants veto power to a committee of the legislature has ever been upheld as constitutional in any jurisdiction in the United States. The lack of judicial resolution of the lawfulness of JCAR and the legislative veto in Illinois should not be taken to mean the scheme is uncontroversial in the state. Indeed, it is little appreciated that Illinois recently experienced a constitutional crisis related to JCAR vetoes. One of the articles of impeachment against former Governor Rod Blagojevich alleged that he had violated separation of powers principles by ordering one of his administrative agencies to refuse to comply with a JCAR veto of its rules. Blagojevich was removed from office in part because of his refusal to accept the constitutionality of the legislative veto. This Article argues that in fact the provisions of the Illinois Administrative Procedure Act that authorize JCAR and the General Assembly to veto agency rulemaking are inconsistent with the separation of powers and enactment provisions of the Illinois constitution. As such, the General Assembly should consider alternatives to the legislative veto now, before the Illinois courts rule the current system unconstitutional and throw the state’s rulemaking process into disarray.