Gov. Hutchinson signs executive orders. But .... | Arkansas Blog

Wednesday, January 14, 2015

Gov. Hutchinson signs executive orders. But ....

Posted By on Wed, Jan 14, 2015 at 4:39 PM

click to enlarge HOW MIGHTY THE PEN? Some questions about Gov. Hutchinson's executive orders.
  • HOW MIGHTY THE PEN? Some questions about Gov. Hutchinson's executive orders.
Gov. Asa Hutchinson flexed his writing hand today and signed a couple of executive orders that might be laden with more symbolism than meaning.

One calls for a state hiring freeze. The other calls for the governor to review new agency rules and regulations.

Sounds tough and take-charge. But let's look a little closer. First the hiring freeze. He's already described it as flexible. Jobs may be filled if a need is demonstrated. It does not apply to federally funded employment efforts. It also exempts the legislature, the Supreme Court, the Court of Appeals, circuit courts, lower courts, the judicial branch, institutions of higher learning [emphasis supplied]; the governor, the lieutenant governor, the attorney general, the secretary of state, the auditor, the land commissioner, the treasurer, members and staff of multimember boards and commissions, the Highway Department and the Game and Fish Commission.

As a practical matter, state government actually hasn't grown much in recent years, except in the exempt category of higher education, which the state has worked to expand. An executive agency chief who madly added jobs that padded a governor's state job growth record wouldn't likely last long, without a demonstrated need for having done so.

So I'm inclined to chalk this order up to symbolism, popular though it will be.

The other order is more interesting. In it, Hutchinson requires that all state agency rules and regulations be submitted to him for approval before being submitted to the legislature, which has ultimate authority over rules and regulations thanks to the passage of Amendment 92 in November.

This is somewhat interesting. Most executive agencies aren't likely to submit rules and regulations that DON'T have the approval of their boss, the governor. However, some agencies have boards appointed over a period of years by multiple governors with authority unto themselves. Think the state Board of Education. As a constitutional matter, may the governor prohibit those boards from submitting items to the legislature? (Not that I think this Education Board is likely to go rogue.)

Also: the governor's proclamation says he may grant exemptions to this rule, but he has yet to name any. It's worth thinking about.

A question has long been brewing about the new Amendment 92 and the legislature's absolute authority over rules and regulations. Does the new amendment override the constitutional independence of the judicial branch, higher education, Game and Fish and the Highway Commission? Does the legislature get approval of their rules now? Can the legislature approve the dates for duck season? And, if they can, does the governor get to pass on the dates first? Nobody has seriously advanced this argument yet. But just wait.

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