With four little boys, I frequently discuss Chicken Little and what does and does not constitute an emergency. Sometimes the screams of panic are totally justified but usually, it’s just an acorn that hits us on the head, not the sky. The Idaho Legislature seems to be creating a similar conversation with the bureaucratic authors of temporary rules, in the form of Senate Bill 1076.
At federal and state-level governments temporary rules are an accessible tool of the executive branch. By their nature, temporary rules avoid the typical rulemaking process which would require feedback from concerned citizens and accountability to the legislature. Instead, these rules enjoy a flexible and quick promulgation timeline allowing them to be used for emergency or unforeseen situations.
In times of actual emergencies, temporary rules are a huge benefit to the speed and efficiency at which the government can respond to situations. However, every person’s definition of an emergency differs in varying degrees and the threat of an overenthusiastic executive or bureaucratic agency liberally designating emergencies is a real danger to the separation of powers.
For example, this loophole tends to be overused. At the federal level, a Government Accountability Office study found that federal agencies avoided the Administrative Procedure Act (APA) 35% of the time on 568 major rules and 44% on 30,000 nonmajor rules adopted from 2003 to 2010. To quote a professor of Law at the University of Minnesota Law School, “It is simply implausible that such widespread use of interim-final or temporary regulations is either necessary or consistent with the APA."
State-level temporary rulemaking varies based on each state and the current administration’s directive. Idaho has already achieved major victories in regulatory reform and oversight, emergency power restrictions, and agency oversight of rulemaking, but supporters of SB 1076 feel the state can take additional steps in protecting the separation of powers.
Senate Bill 1076 recognizes that “temporary rules do not always follow the negotiated rulemaking process. Therefore, to ensure accountability of agency rules to the legislature to Idaho citizens, temporary rules shall be used only in emergency or other limited situations where negotiated rulemaking is not feasible. Agencies shall make every effort to promulgate rules utilizing the negotiated rulemaking process.”
The bill specifies the reasons for a governor authorizing a temporary rule be when “An imminent threat to the public health, safety or welfare from a specified danger that was unknown to the agency prior to or during the most recent session of the legislature or from measurable worsening of such threat or danger.” The bill will also require the governor to declare why the guidelines are needed at an earlier effective date.
The amended version of SB 1076 leaves more flexibility for the governor to extend the temporary rules and still allows for a person aggrieved by the rule to challenge it in accordance with the Idaho Code. The cost of the proposed legislation is expected to be minimal. The bill passed the Senate 35-0 on February 28 and has been referred to the House State Affairs Committee where it has sat since March 3, 2025.
Idaho has made great strides to limit government and teach the bureaucracy a couple of things about Chicken Little and real emergencies. Senate Bill 1076 goes a few steps further to ensure that even in unforeseen circumstances, more than one voice is involved in implementing temporary rules for “falling sky” events or avoiding unnecessary guidelines in the case of acorns.
It remains to be seen if SB 1076 will make it across the finish line by the end of the session.