by Thomas Morris
Colorado’s constitution vests all legislative authority in the General Assembly[1]. It also requires a separation of powers between the “three distinct departments,—the legislative, executive and judicial” by specifying that “no person . . . charged with the exercise of powers properly belonging to one of these departments shall exercise any power properly belonging to either of the others . . .”.[2] How, then, can executive branch agencies promulgate rules, which are a type of law[3] that seemingly should be enacted by the General Assembly?
Pursuant to well-established principles of administrative law, a legislature may delegate its law-making power to an executive agency, but only if there are “sufficient statutory standards and safeguards and administrative standards and safeguards, in combination, to protect against the unnecessary and uncontrolled exercise of discretionary power.”[4] Accordingly, it is fairly common for a legislature, once it has delegated rule-making authority to an agency, to review the agency’s exercise of that authority to ensure that the legislature’s intent has been carried out faithfully.
Since 1976, the Administrative Procedure Act (APA)[5] has required Colorado’s rule-making agencies to submit their new rules to the General Assembly for review. But the scope, procedures, and standards of that review have evolved over time. This article, the first of two regarding the rule review process, briefly summarizes that evolution.
Pre-legislative oversight era
The General Assembly enacted the earliest version of the APA in 1959.[6] This version of the APA did not provide for legislative rule review but did specify the following standards[7] for determining whether a rule is authorized:
No rule shall be issued except within the power delegated to the agency and as authorized by law. A rule shall not be deemed to be within the statutory authority and jurisdiction of any agency merely because such rule is not contrary to the specific provisions of a statute.
The General Assembly first provided for the systematic review of rules’ statutory authority in 1967[8] by directing the attorney general to review both new[9] and existing rules:
3-16-2. Rule making procedure. (8) (b) On and after July 1, 1967, no rule shall be issued, nor existing rule amended, by any agency unless it shall first be submitted by the issuing agency to the attorney general for his opinion as to its constitutionality and legality. Any rule, or amendment to an existing rule, issued by any agency without being so submitted to the attorney general shall be void.
(c) All rules of any agency in effect on July 1, 1967, also shall be submitted, on or before December 31, 1967, to the attorney general for his opinion as to its constitutionality and legality, and no such rule shall continue in effect after December 21, 1968, unless so submitted.
Early legislative oversight
Evidently concluding that more oversight was needed, 10 years after directing the attorney general to review both new and existing rules, in 1976, the General Assembly added a law[10] that, for the first time, provided for systematic legislative review of new rules:
24-4-103. Rule-making – procedure. (8) (d) All rules adopted or amended on or after July 1, 1976, shall be submitted by the adopting agency to the appropriate committees of reference of the general assembly, if the general assembly is in session or to the committee of legal services if the general assembly is not in session, for its opinion as to whether the rules conform with paragraph (a) of this subsection (8). Any such rule or amendment to an existing rule issued by any agency without being so submitted to the appropriate committees of reference or to the committee of legal services shall be void. The committee on legal services shall, on affirmative vote, submit such rules, comments, and resolutions as deemed appropriate to the legislative committees of reference at the next regular session of the general assembly. A committee of reference, or the committee on legal services, or any member of the general assembly may introduce a bill which amends or rescinds the rule. Rejection of such a bill does not constitute legislative approval of the rule. Only that portion of any rule specifically disapproved by bill shall no longer be effective. Where the rule or amendment to an existing rule will have a fiscal impact on the state or any of its political subdivisions, the agency shall include a fiscal statement thereof with the rule or amendment submitted to the appropriate committees of reference or the committee on legal services. This section does not apply to rules of agency organization or general statements of policy which are not meant to be binding as rules.
This initial requirement for legislative review of new rules differs from current procedure in several respects:
- The review was conducted by committees of reference, or, if the legislature was not in session, the committee on legal services (COLS); current law directs the Office Legislative Legal Services (OLLS) to conduct the initial review;
- It appears that, if COLS determined that a rule lacked statutory authority, it was directed to submit a “resolution” to an appropriate committee of reference, although COLS could, along with a committee of reference or any legislator, also file a bill; current law directs COLS to file a bill;
- The submitted rule must include a fiscal impact statement; current legislative review of rules does not specifically relate to fiscal impacts; and
- Legislation resulting from the review would “amend[] or rescind[]” the rule; current law provides for “automatic termination” of all new rules and an annual bill that “postpones the expiration” of all rules other than those specifically listed.
Not long after these changes, the General Assembly enacted more significant changes to the rule review process. In part 2 of this article, we’ll explore those changes and the rule review process from 1976 through its current iteration.
[1] “The legislative power of the state shall be vested in the general assembly . . .” Art. V, §1 (1) of the Colorado Constitution.
[2] Art. III of the Colorado Constitution.
[3] “‘Rule'” means the whole or any part of every agency statement of general applicability and future effect implementing, interpreting, or declaring law . . .”. §24-4-102 (15), C.R.S.
[4] Cottrell v. City and County of Denver, 636 P.2d 703, 709 (Colo. 1981).
[6] HB 59-212; L. 59, p. 159, §2.
[7] These standards, currently codified in section 24-4-103 (8)(a), C.R.S., were initially codified in section 3-16-2 (8), C.R.S. 1953 (cumulative supplement) and then codified in the same section in the 1963 C.R.S.
[8] SB 67-102; L. 67, p. 300, §2.
[9] Section 3-16-2 (8)(b), C.R.S. 1963, providing for the attorney general’s review of new rules, continues in essentially the same form today, codified as section 24-4-103 (8)(b), C.R.S.
[10] SB 76-076; L. 76, p. 582, §15.