Klingenschmitt Bill Could Have Unintended Consequences

By Handy, Ryan Maye | The Gazette (Colorado Springs, CO), January 19, 2015 | Go to article overview

Klingenschmitt Bill Could Have Unintended Consequences


Handy, Ryan Maye, The Gazette (Colorado Springs, CO)


On first read, Colorado House Bill 1044 might seem like bureaucratic jargon, with little meaning or implications for Colorado residents.

As one of more than 100 bills introduced in the House in January, 1044 "concerns the periodic legislative review of executive branch agency rules." But for the bill's sole sponsor, state District 15 Rep. Gordon Klingenschmitt, R-Colorado Springs, it's a defense of the U.S. Constitution.

The bill taps into an academic debate surrounding the legality of the Code of Colorado Regulations - rules used by state agencies that are not determined or enforced by elected lawmakers. Klingenschmitt's bill would require the legislature to step into the administrative rule-making process, a move that could either be a subtle victory for the democracy or wreak havoc over the state's agencies, creating exhaustive reviews and leaving some agencies in temporary lawless limbo, legal experts say.

Klingenschmitt's joking title - "the unelected, dead bureaucrats don't make rules act" - reveals the bill's true intent: requiring current legislators to review regulations that have in some cases gone decades without review.

"The legislature ought to be reviewing rules that have not been reviewed since 1984," said Klingenschmitt, who was elected to his first term in November. "How can a citizen protest a rule if the person who wrote it is not elected? Rules and laws ought to be made accountable."

How we got here

Klingenschmitt hopes the bill will not only create a more democratic process for Colorado but also relieve the executive branch of the burden of policing and monitoring its own rule system. Experts agree that his bill touches upon a little-known debate over the constitutionality of letting government agencies regulate without the input of state legislatures or the U.S. Congress.

"It does give much greater democratic control," said Jon Michaels, an administrative law expert and professor at the University of California, Los Angeles. "This is a clear response to a concern that the administrative state is too big and too far removed from democratic input."

Klingenschmitt has signed his name to a number of headline- making bills proposed this session, including the repeal of background checks for private gun sales and making performing an abortion a felony. The former Navy chaplain also runs a Sunday television ministry as a part of the religious advocacy group "Pray in Jesus Name." But when it comes to legislative policy, Klingenschmitt is particularly passionate about House Bill 1044, he says.

Klingenschmitt was inspired to spend a month drafting the bill after he read "Is Administrative Law Unlawful?" The book, by Columbia University law professor Philip Hamburger, questions whether things like the Code of Colorado Regulations are constitutional.

Hamburger believes that administrative law, at least at the federal level, is unconstitutional because it imposes laws not created by Congress. For instance, agencies like the federal Environmental Protection Agency, which oversees enforcement for oil spill cleanup and air quality standards, rules through administrative law, Hamburger said.

"What is this administrative power? ... It's an extra-legal sort of power, sort of binding Americans through laws not made by Congress," he said. "But this is an attempt by government to control us through another means not laid out by the constitution."

Although Hamburger's book was written to address the federal government and the U.S. Constitution, Klingenschmitt sees the need in Colorado for a process that would allow the code of regulations to come under regular legislative review or abolish and recreate rules. The bill would create a four-year review process for all rules within the code of regulations, which governs everything from the tax system to highways. If the legislature does not conduct a review, the rules could be wiped from the books, although Klingenschmitt says the bill ensures that laws will always come under review and will never lapse. …

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