Ends and Means: Well, Governor, Since You Asked

Dec 1, 2007

 

Charles N. Wheeler III
Credit WUIS/Illinois Issues

If you were scratching your head when the word JCAR popped into the news a few weeks ago, don't feel too bad.

Chances are, few folks outside the inner workings of state government had heard of the Joint Committee on Administrative Rules, or, as most reporters describe it, the "obscure" arm of the General Assembly.

Most Illinoisans don't pay close attention to the behind-the-scenes, nuts-and-bolts machinery that produces public policy, any more than they consciously think about the inner workings of the cars they drive or the TVs they watch. 

What brought the "obscure" panel into the spotlight, of course, was its decision to block Gov. Blagojevich's attempt to unilaterally expand eligibility for state-subsidized health insurance, a first step toward his ultimate goal of universal health care for Illinoisans.

The governor sought an emergency change in eligibility rules for the FamilyCare program so that folks earning as much as 400 percent of the federal poverty level — $82,600 for a family of four — would be eligible for the program. Currently, the income lid is 185 percent of the poverty level, $32,803 for a family of four.

But the committee voted 9-2 to reject the change, saying there was no emergency. Some members criticized the governor for trying an end run around the legislature, which so far has failed to approve the expansion, first proposed in March, or to allocate additional funds to cover its costs.The reaction from the confrontational Blagojevich was typical: He ordered workers at the Department of Health Care and Family Services to start signing up people at the higher income level, despite JCAR's rebuff. 

"Where is it written that a handful of legislators — 12 of them — can tell the executive branch what it's going to do when it comes to administering the executive branch?" huffed Blagojevich.

Well, governor, since you asked, that would be 5 ILCS 100/5-115. That's the section of the Illinois Administrative Procedure Act (IAPA) that authorizes JCAR to prohibit agency rulemaking that "would be objectionable" under the law's standards — such as a proposed rule that exceeded an agency's statutory authority — and "would constitute a serious threat to the public interest, safety, or welfare."

The panel consists of 12 lawmakers, three Democrats and three Republicans from each legislative chamber. The committee meets once a month to consider 50 to 100 separate rulemakings by state agencies, all of which add up to some 20,000 pages of rules a year, according to the JCAR Web site. Three-fifths of the members — eight — must agree to block a rule.

The premise underlying the Administrative Procedure Act and JCAR reflects the fundamental division of governmental power at the federal and state levels into three branches, a separation that provides a generally effective check and balance against excesses by any single branch.

Every school child learns that the legislative branch enacts the laws, the executive branch carries out the laws and the judicial branch resolves disputes over the laws and safeguards legal and civil rights.

In reality, though, the workload divisions aren't nearly so neat. For example, the legislature rarely creates a government program with all the details spelled out to the nth degree. Instead, lawmakers typically rely on the state agency responsible for carrying out a program to fill in whatever blanks exist in the statute through rulemaking.

And that's where JCAR comes in. The panel's main job is to review all the rules state agencies want to adopt to make sure every proposal accurately carries out what the legislature intended when it created the program. Also, the committee checks that ordinary citizens have the opportunity to review and comment on any proposed rule, in line with the law's goal of assuring public participation in rulemaking.

When legislation gives an agency discretion in administering the law, JCAR requires that the rules provide appropriate standards so that the public knows the basis on which decisions are made, rather than being arbitrary.

Thus, JCAR is a watchdog for the General Assembly, charged with overseeing the executive branch's implementation of the laws made by the legislative branch.

As explained on the JCAR Web site, the rulemaking process under the Administrative Procedures Act starts when an agency publishes a proposed rule in the Illinois Register, a weekly compilation designed to keep the public informed of rulemaking activity.  The agency must wait at least 45 days, during which the public can comment on the proposal, before seeking JCAR approval. Once the agency formally sends the proposed rule to the committee, along with any public comment, the panel has 45 days to review the proposal for statutory authority, propriety, standards for exercise of discretion, economic effects, clarity, procedural requirements and other similar points.

If the committee has no objections, the agency can adopt the proposed rules by filing them with the secretary of state for publication in the Illinois Register.  The committee may recommend modifications or object to a proposal, but the agency still is free to adopt the rule without change.

However, if the committee prohibits a rule — as it did with Blagojevich's health proposal — the agency may not enforce the rule. The ban is permanent until the agency revises the proposed rule to JCAR's satisfaction, the panel withdraws the prohibition or the General Assembly passes a joint resolution lifting the ban.While the process may sound adversarial, in reality the panel usually does not object to proposed rules. Last year, for example, JCAR reviewed 472 rulemakings by state agencies, according to its 2006 annual report, and prohibited only five, a 99 percent success rate for the executive branch. The panel objected 34 times and issued recommendations in 22 instances. Thus, 411 proposed rules — 87 percent — sailed through JCAR with no problem.

Defending her boss' decision to defy the committee on health care expansion, Blagojevich spokeswoman Abby Ottenhoff told reporters, "JCAR's role is merely advisory — it does not have the constitutional authority to suspend the regulation."

To back up the claim, she cited an amendatory veto Gov. Jim Thompson issued in 1980, asserting that allowing JCAR to determine rules for executive branch agencies would violate the separation of powers doctrine. Not surprisingly, the legislature overrode the governor.

While Illinois citizens may recall Thompson's record-setting tenure with a bit of nostalgic longing these days, his 27-year-old complaint about JCAR seems less compelling coming from someone with Blagojevich's track record.

Consider, for example, that in his first four years, state agencies under the governor's control filed almost 2,000 proposed rules with JCAR. If the rulemaking process outlined in the Administrative Procedures Act is such a source of indigestion to Blagojevich, one might have supposed he would have raised the issue earlier, perhaps after the first 1,000 filings or so.

Even more devastating to the governor's current argument is the fact that he himself signed legislation three years ago that dramatically increased JCAR's ability to block rules. The measure, now Public Act 93-1035, reversed the process for making a ban permanent. Before Blagojevich approved the bill, a JCAR prohibition would expire after 180 days, unless both the House and the Senate voted to make it permanent. With the governor's signature, a JCAR ban on a proposed rule now is permanent, unless lawmakers vote to lift it.

A governor worried about legislative infringement on the executive branch would have vetoed, not signed, such a measure, one would imagine. Perhaps he misunderstood the language; his staff had only about five weeks to analyze the eight-page bill. Or maybe he was distracted; the Cubs beat the Florida Marlins, 11-2, at Wrigley the day the bill was signed.

Whatever.

Blagojevich's current stance does raise some interesting questions, even for Illinois political observers long since jaded by the Springfield scene:

  • Would a FamilyCare intake worker commit welfare fraud in signing up someone for state-subsidized health insurance whose income exceeded the legal limit established by the rules the governor wants to change?
  • If a doctor treated that person and then billed the state, would he or she be a party to welfare fraud? Would the bill ever be paid?
  • If the state refused to pay a provider's bill, would the patient then face an unexpected medical cost, potentially leading to collection agencies and a damaged credit rating?
  • If the state decides to cover medical bills for another 147,000 people, where will the money — projected at more than $200 million this year — come from?

"Close corporate loopholes" is the governor's standard line, a euphemism for increasing taxes on business. But Blagojevich offered the same solution to replace some $400 million the state would lose under his favored solution for the mass transit funding crisis in the Chicago area.

Presumably, the governor realizes that he can't lay the tab on business through executive fiat, but would need the legislature to change the law. Then again …

 

The premise underlying the Administrative Procedure Act and JCAR reflects the fundamental division of governmental power at the federal and state levels into three branches, a separation that provides a generally effective check and balance against excesses by any single branch.

Charles N. Wheeler III is director of the Public Affairs Reporting program at the University of Illinois at Springfield.

Illinois Issues, December 2007