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Separation of Powers Is Still A Good Idea

The idea of “separation of powers” is expressly mentioned in Article II, section 1, of the Idaho Constitution. It states that “persons in one branch shall not exercise any authority belonging to another.” The idea is that the three branches of government (executive, legislative, and judicial) are to be kept separate to provide a system of checks and balances.

Let’s say Nancy Pelosi resigned from office and her congressional district was required to submit three names to President Trump for appointment. Democrats would rightly protest, “Wait, you can’t have a Republican President appoint a Democrat Congressional Representative from a list of three options especially where the President serves in the executive branch and the appointment is to the legislative branch that he serves with.”

Yet, that is the kind of problem we face right here in Idaho.

Under Idaho law, Republicans and Democrats vote in Precinct Committee Officers (“PCOs”) in various precincts across the state. These PCOs are elected officials voted into office at the grass roots level to represent their constituents in matters involving their own party. PCOs are even administered an oath of office to be faithful to the laws and constitution of Idaho. PCOs in a legislative district serve as the liaisons between their party legislators and their party constituents.

Under current law, when a state legislator resigns, the PCOs of the political party of the resigning legislator vote to place the names of three persons on a list from which the governor appoints one. If the resigning legislator is a Republican, the Republican PCOs from the legislative district vote to place the names on the list. If the resigning legislator is a Democrat, the Democrat PCOs from the legislative district vote to place the names on the list.

The point is that the grass roots party elected officials from the legislative district represent the party constituents in the legislative district in replacing their resigning party legislator. The separation of powers problem arises when the governor, who serves in the executive branch, exercises executive authority and selects a person from the list to appoint rather than appointing the person selected by the elected officials representing the legislative district.

This can lead to absurd results. Let’s say Idaho has a Democrat governor and a Republican legislator resigns. If the list of appointee candidates has only two names, then the Democrat governor can select anyone including a Democrat to replace a Republican legislator. If the list of appointee candidates has three names, the Democrat governor can appoint the most Democrat-like appointee candidate even though the legislative district leans heavily conservative Republican. Whether he or she be Republican or Democrat, the governor should not have authority to usurp the will of the elected grass roots officials in selecting a replacement legislator in either party. This power belongs locally with party PCOs. This is why the Bonneville County Central Committee is seeking a rule change that allows the submission of one name to the governor for appointment.

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