Jared Hendrix: Support The Separation Of Powers In North Dakota


During the time of Aristotle, theories arose regarding the different components of government. These debates evolved over the centuries during which the world was exposed to every variant of monarchy, despotism and empire. It was the great political philosopher Montesquieu who most concisely established the concept of the “separation of powers” within government. In 1748, he published ‘The Spirit of the Laws’, which prescribed the purposes and “balance of power” between an executive branch, a legislative branch and a judicial branch.

Montesquieu’s view dramatically changed political philosophy and most directly informed America’s founding fathers — particularly James Madison, as he wrote the Constitution. Similarly, each individual state among the United States has been constituted according to these same principles. This design is intended to ensure that no one division of government gains too much power over the others, thus helping to allow a society of greater liberty.

Other parts of the world — China on a more extreme level or Great Britain on a less extreme — favor a fusion of power system. In this arrangement, lines between legislative and executive authority are blurred. Perhaps the longstanding traditions of monarchies or Communist dictatorships render these systems acceptable in other parts of the world. The argument is that, with greater concentration of power, government is better able to “get things done”.

This is true, but it is also a very bad thing.

From America’s founding, government has been painstakingly designed to work slowly and deliberately in crafting law and making important changes. In other words, it was never intended for government to have an easy time “getting things done”. Certainly, government must effectively and efficiently provide core services. But a system of checks and balances within a strictly limited government allows that government to provide those core services most effectively.

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#000000″ txt_color=”#ffffff”]If the agencies can introduce bills and they possess all the knowledge necessary to put forth new law, then why do we even need the elected representatives of the people?[/mks_pullquote]

Before the North Dakota Legislature is House Bill 1442, introduced by Rep. Nathan Toman, which addresses the introduction of bills by state agencies. North Dakota is among only 3 states that currently allow agencies of government — extensions of the executive branch — to submit requests for bills to be drafted by Legislative Council, automatically assigned to a Committee and then de facto introduced by that Committee. This process is not prescribed in state statute or the State Constitution. It exists only in Legislative rules drafted by the Legislature.

Certainly, this allows government to “get more things done”. However, it also essentially renders the Legislature irrelevant. If the agencies can introduce bills and they possess all the knowledge necessary to put forth new law, then why do we even need the elected representatives of the people?

Of course, many counter arguments would be offered… “Well, the legislators still ultimately vote to enact the law or not to enact the law.” This dodges the fact that many of these agency bills are rubber stamped in committee with considerably less review and many still receive little if any floor debate. Other arguments may include, “Well, these laws are just housekeeping,” or, “Well, these are benign bills, nothing to see here, let’s just get it done,” or, “I trust the agency of government to know what’s best and I don’t have time to read and understand all that mess.”

I’ve literally heard these words from legislators. The response to these things is simple: Firstly, if they are too lazy to put forth the effort to understand policy, then they shouldn’t be in elected office. Secondly, if agency bills are such great ideas — so intrinsically sellable — then surely they ought to be ideas that a legislator would be eager to introduce. If a state employee can’t find a way to get their bill in, then perhaps they can do the hard work our Representatives have done, running for office and convincing the people that their idea is a worthy endeavor.

Anyone working for an agency of government, as a citizen of North Dakota, has the same right as anyone else to bring an idea to their legislator for a bill. Why should state employees be given a fast track and a special backdoor privilege for getting bills into consideration? Why is an average citizen treated as second class to a government employee? More importantly, where do politicians possibly think they derive the power to do this through procedural rules?

Article IV, Section 12 of the North Dakota State Constitution states that, “Each house shall determine its rules of procedure.” Yet, for the House and Senate to have drafted rules of procedure that redirects the authority for introducing legislation to another branch of government is a total contradiction to the purpose of the Legislature, which is to write law. Writing law inherently encompasses the entire process of drafting, introducing, procedurally moving and voting on a piece of legislation.

In the 2015 Legislative session, approximately 12% of all bills are agency-introduced bills. These, per rules, must be pre-filed before the session begins and before the legislators — the elected representatives of the people — can have their bill ideas submitted to Legislative Council for drafting. If agencies weren’t given this backdoor, Legislative Council would spend more time and energy on working with legislators on the bills that are important to them and their constituents. The number of Council employees has hovered just over 30 people for at least a decade, so lessening the workload increases the quality of the work that can be done.

Many will defend the status quo by suggesting that representatives from these agencies are the “expert” on their topic areas. Having an “expert” bring an idea for a bill, help write that bill and perhaps even testify on behalf of that bill is perfectly acceptable and, in fact, should be encouraged if we want the best information on various issues. However, where input for a bill originates is different than the introduction itself. The weight of the bill itself should be carried by an individual legislator, who introduces and sponsors it and who is accountable to that bill. They are responsible for both its shepherding and the results of its impact on the lives of the people. State agencies are comprised of public employees or contractors and are not directly accountable to the people.

In other words, I can “fire” my legislator, but not my bureaucrat.

HB 1442 is a bipartisan bill that has attracted support from Republican bill cosponsors like Rep. Blair Thoreson and Democrats like Rep. Corey Mock. It’s a no brainer for anyone who understands the fundamental and necessary separations of power in government. Please contact your legislator and ask them to support HB 1442 and restore the balance of power in North Dakota.