This Wednesday, the Ohio Senate State & Local Government & Veterans Affairs Committee will meet to consider an easily overlooked issue that is essential to the proper functioning of our State government. The Committee will consider changes to the workings of the Joint Committee for Agency Rule Review (JCARR), a joint committee of the Ohio General Assembly that reviews rules from Ohio’s executive branch agencies such as Ohio EPA, Department of Agriculture, and scores of others.
Under current law, all proposed agency rules must be submitted to JCARR for review based on limited statutory criteria. JCARR may then recommend that the General Assembly adopt a concurrent resolution to invalidate all or part of the proposed rule. If both chambers of General Assembly approve the resolution, the rule is invalidated and the agency may not re-introduce any version any part of it. Unlike a bill that must be presented to the Governor to be signed to become law, a resolution needs only to be passed by both houses of the legislature. Thus, JCARR permits the legislature to “veto” all or part of a proposed agency action.
The proposal, Ohio House Bill 396 (HB396), would require JCARR’s recommendations to become a bill before the General Assembly, which, if passed by both Houses, would be presented to the Governor for a signature or a veto. This approach will eliminate the “legislative veto” and improves the functioning of state government.
The Legislative Veto Problem
The problem is that such “legislative veto” provisions have been struck down as unconstitutional violations of the separation of powers all across the country. The seminal case on the issue is Immigration and Naturalization Service v. Chadha, where the U.S. Supreme Court struck down a federal legislative veto provision. As the concurring opinion in Chadha noted, the holding is broad enough to invalidate almost every conceivable use of the legislative veto. After that case, the Supreme Court reiterated its stance by issuing summary affirmances to lower court decisions invalidating legislative veto provisions.
Fast forward to today, and 11 of the 12 State Supreme Courts to consider the issue have ruled that legislative veto provisions violate the separation of powers embodied in their state constitutions. The Ohio Supreme Court would almost certainly fall in line with the majority on this issue.
The Ohio Constitution requires each branch of government to stay within the bounds its respective authority. The legislative power of the state is vested in a general assembly, the executive power is vested in the governor, and the judicial power is vested in the courts. A statute that violates the doctrine of separation of powers is unconstitutional. Although the branches of government can’t be completely sealed off from one another, “[t]he principle of separation of powers is embedded in the constitutional framework of our state government.”
Part of the Ohio Constitution’s embodiment of the separation of powers is represented by the Enactment and Presentment Clauses. The Enactment Clause states that “t]he General Assembly shall enact no law except by bill,” which must pass both houses. The Presentment Clause requires that all bills be presented for the Governor to sign or veto before they become law.
As Alexander Hamilton noted while defending a nearly identical Presentment and Enactment clauses in the U.S. Constitution:
[t]he primary inducement to conferring the power in question upon the executive, is to enable him to defend himself; the secondary one is to encrease the chances in favor of the community, against the passing of bad laws, through haste, inadvertence, or design.
Another advantage of requiring the Governor’s approval of each legislative act is that it ensures that each bill is considered from a state-wide perspective. Some legislation might grant a moderate benefit to 2/3 of the state at a huge cost to the other 1/3. Requiring bills to go before the governor ensures that each law is passed by at least one person with a broad, state-wide perspective in mind.
As the US Supreme Court explained in Chadha, in order to preserve this balance of power in the government, “[t]he hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted.”
Thus, the Presentment and Enactment Clause requirements apply whenever the legislative branch attempts to make rules of general application. The U.S. Supreme Court has explained that an act of Congress is legislative if it has “the purpose and effect of altering the legal rights, duties, and relations of persons. . . outside the Legislative Branch.” “Amendment and repeal of statutes, no less than enactment, must conform with this requirement.”
Applying these precedents to JCARR, the Constitutional problems are clear. The legislature’s veto of proposed rules counts as a legislative act because it affects the rights of people outside the legislature. This kind of action may only be taken by creating a bill that is presented to the Governor.
That is why the proposal before the Senate is so important. As it stands, JCARR is an unconstitutional hindrance to the proper functioning of state government. The General Assembly has a “back door” method to usurp the function of the executive branch, and the executive has no proper way to defend itself.
OEC Attorney, Grant Maki will deliver testimony before the Senate Committee in support of HB396 this Wednesday.
 462 U.S. 919 (1983)
 See Process Gas Consumer Group vs. Consumer Energy Council , 463 U.S. 1216 (1983)
 Oh. Const. Art. II, §01,
 Oh. Const. Art III, §05
 Oh. Const. Art. IV, §01.
 State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St. 3d 451, 475 (Ohio 1999).
 State v. Hochhausler, 76 Ohio St. 3d 455, 465-466 (1996)
 Ohio Cost., Art. 2, Section 15(A)
 Ohio Cost. Art 2, Section 15(E)
 The Federalist No. 73, at 458 (J. Cooke ed. 1961) (A. Hamilton).
 Chadha, 462 U.S. at 951
 Chadha, 462 U.S. at 952
 Chadha, 462 U.S. at 954