To: Representative Dennis Smith; Representative Tony Albright; Representative Gene
From: Danielle Robinson Briand, Esq. on behalf of the Minnesota Immigrant Rights
Date: May 22, 2016
Re: House Proposal for S3589 Section 23, Subdivision 4(b) is UNCONSTITUTIONAL
Let it be known that there is no legal basis to support the House’s proposal in S.F. 3589 Section 23, Subdivision 4(b), which requires the legislature to either ratify or veto the rules promulgated by the Department of Public Safety following administrative rulemaking. In fact, this proposal raises serious questions about the separation of power that is established under the Minnesota State Constitution.
Article IV of the Minnesota Constitution provides no basis for the legislative “approval” (i.e. ratification/veto) of agency rules. Likewise, there is no legal basis for legislative ratification or veto under the Minnesota Statute on Agency Rulemaking.
We underscore here that the only legal authority that the legislature has to “veto” an administrative rule promulgated by an executive agency is through the legislative coordinating commission under Minnesota Statute section 3.842 or through the legislative process pursuant to Minnesota Statute section 14.05, subd. 1. The latter process is precisely what the Senate is proposing in the “A11 Amendment” to S3589, which would require the legislature to engage in the legislative process FROM THE BEGINNING if there are concerns about the legitimacy of the proposed agency rules. Otherwise, the Minnesota Constitution authorizes the judiciary to review the constitutionality of administrative rules, whether or not the administrative rules exceed the legislative intent of S3589, and/or whether the legislature complied with procedures required under the Administrative Procedure Act.
We are here to say that it is the House that is sandbagging Real ID through anti-immigrant politicking, which is eminently obvious through its unconstitutional proposal in Section 23 of S3589. This is precisely what the greater public will come to know once the legislative session expires should Real ID fail to come into fruition.
The Attached PDF report (MN House Research Report on Administrative Rulemaking) published by the Minnesota House of Representatives Research Department outlines the proper legal analysis to questions on administrative rulemaking.