Takeaways from Nate v Denney ruling: A nerdy exploration of legislative implications


Lawmakers challenging Gov. Otter’s grocery tax repeal veto pose for a photo in front of the Idaho Supreme Court on June 15. Photo by Melissa Davlin/Idaho Reports

By Melissa Davlin and Seth Ogilvie, Idaho Reports

The Idaho Legislature has been violating the Constitution for 50 years, and as a result, will have to stay after school until it turns its homework in.

Oh, and you’ll still have to pay that 6 percent sales tax on your groceries.

All that and more, according to a 4-1 opinion released by the Idaho Supreme Court on Tuesday afternoon.

As Idaho Reports producer Seth Ogilvie wrote last week, the implications of the lawsuit were bigger than whether Idahoans would continue paying a 6 percent tax for their groceries. You can read his legal primer here. 

And the implications of this ruling are bigger than your grocery bill, too. Here are our takeaways:

1. The House and Senate must present all legislation to the governor before adjourning sine die for the session. This breaks with the tradition of the legislature, which (as we saw in this court challenge) regularly delivered bills to the governor up to a few days after adjournment.

“In summary, Article IV, section 10, of the Constitution clearly and necessarily prohibits the legislature from presenting bills to the governor after the legislature has adjourned sine die,” the opinion says. “It requires that bills must be presented to the governor while the legislature is still in session. That is the only logical interpretation of the section.”

There’s another note: If the court had applied this ruling retroactively, it could have taken out every single other piece of legislation delivered after sine die, either this year or from previous years — this year’s transportation bill, for example.

“A bill cannot become law unless it is presented to the governor (according to) Idaho Const. art. IV, § 10, and, as explained above, that presentment must occur while the legislature is in session,” the opinion reads. “If we declared the Governor’s veto untimely, we would also have to declare the law he vetoed void because it had not been presented to him before the legislature adjourned sine die. Both the presentment by the legislature and the veto by the Governor violated the Constitution.”

2. Individual lawmakers have standing to challenge vetoes, as opposed to the legislative bodies as a whole. This, again, breaks from tradition. Previously, the US Supreme Court held that the US House of Representatives, as a body, had standing to sue the Obama administration over the Affordable Care Act. The precedent this sets could be interesting.

3. The Idaho Legislature has been violating the Idaho Constitution for 50 years. “It appears that the first time in our State’s history that bills were presented to the governor after adjournment sine die was in 1967, when the house presented bills to Governor Samuelson nine days after adjournment sine die… Since then, the legislature has routinely presented bills to governors after adjournment, with no apparent objection by those governors,” the opinion says. “Of course, their failure to object cannot change the requirements of the Constitution.”

If anything, this opinion scolds the Idaho Legislature far more than it does the governor.

4. It wasn’t a unanimous decision. Justice Warren Jones dissented, saying the ruling amounts to a change of the Idaho Constitution — not an interpretation, as the majority maintains.

That doesn’t mean he’s a fan of Cenarrusa. “Which “interpretation” is correct?” he writes in his dissent. “Neither; I am bothered by both results because both demonstrate a disregard for the integrity of the Constitution. Again, the bottom line is that both “interpretations” amount to unauthorized amendments to the Constitution.”

5. The one thing the court didn’t bring up: Whether this challenge creates a shortcut to the bench by bypassing lower courts, where lawsuits normally start.

“The hazard here is if the court immediately takes up the constitutionality, the court has created a shortcut to its bench,” argued Deputy Attorney General Brian Kane in his June 15 oral arguments in front of the Supreme Court.

Keep an eye on whether this, like the standing decision, sets a precedent moving forward.


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