This Article collects and analyzes nearly four decades’ worth of data concerning the legislative oversight of administrative agency rulemaking in Illinois. Its chief purpose is to assess the efficacy of the state’s legislative veto scheme. In particular, the Article focuses on the Joint Committee on Administrative Rules (“JCAR”), a bipartisan legislative committee that is authorized to review rules produced by administrative agencies in the executive branch. Since late 2004, JCAR has possessed veto power over agency rulemaking, meaning the committee may permanently stop implementation of new rules upon the vote of three-fifths of its twelve members. For even longer, the Illinois General Assembly has been authorized by statute to block agency rules through passage of joint resolutions, which do not require presentment to the Governor for a potential executive veto. In a companion piece, the author argued that the legislative veto scheme in Illinois is unconstitutional, primarily because it allows the General Assembly to engage in lawmaking without meeting the state constitutional requirements of bicameralism and/or presentment. This piece addresses the distinct question of whether legislative vetoes are an effective and desirable method for policing agency rulemaking. Such analysis is warranted, notwithstanding the alleged unconstitutionality of the extant legislative veto scheme, because the Illinois constitution could be amended to allow legislative vetoes, as has been done in other states. The Article offers several observations and conclusions. The data suggests that the threat of a legislative veto may drive agencies toward creating smaller and arguably more optimal volume of rules annually. But it also shows that in the years since JCAR was granted veto powers the number of rules that JCAR has prohibited and suspended has increased markedly, correlating with a further drop in rulemaking volume that raises questions about whether the state’s agencies are being over-policed. In addition, a qualitative assessment of JCAR’s veto activity since 2005 reveals that JCAR has in multiple ways deployed its veto authority in a manner beyond its statutory authority. The Article concludes that the General Assembly’s grant of legislative veto powers to JCAR, while well-intentioned and in some ways beneficial, has disrupted the balance of power among the governmental branches in the state, obscuring lines of political accountability and wresting too much institutional control of rulemaking power from the executive. The Article recommends that, if the Illinois Supreme Court eventually rules the legislative veto unconstitutional, the people of Illinois reject efforts to reinstate the veto through constitutional amendment.
Falkoff, Marc D., "An Empirical Critique of JCAR and the Legislative Veto in Illinois" (2016). Faculty Peer-Reviewed Publications. 557.
College of Law