Beginning on Jan. 1, 1978, an important process became law that very few people know about and even fewer people understand. But the Illinois Administrative Procurement Act affects your everyday life in a very real way, especially lately.
It subjects you to rules written by unelected officials that eventually are acted upon by a small group of elected officials called the Joint Committee on Administrative rules, or JCAR. It’s processes, however, were not included in the “Schoolhouse Rock” classic “I’m Just A Bill.”
The act defines the authority and establishes a process by which state agencies in Illinois make rules to implement the laws passed by the General Assembly. There are dozens of state agencies, boards and commissions in Illinois, many of which hover over our everyday lives. Examples include the state departments of Public Health, Revenue, Corrections, Agriculture, Children and Family Services, Human Services, Military Affairs, and Veterans’ Affairs; the Illinois State Police and State Board of Education; and the list goes on and on.
Central Management Services is the state agency that is supposed to oversee these entities. On its website, it is noted there are more than 80 of these bodies. Most have rule-making authority.
According to the Procurement Act, state agencies take over where lawmakers leave off after a bill is passed and signed into law by the governor. The rules they set are supposed to carry through the intent of the legislation that created the authority for a specific state agency. There must be underlying legislation that can be cited for which the rule-making authority is granted.
Often, when I was a member of the House, I would scan the hundreds of bills proposed to look for the words, “subject to rule-making authority.” When I saw those words, I knew that I was voting to yield some of my duty as a lawmaker to an unelected bureaucratic state agency. I also understood this authority could last forever or until a new law repealed it.
Not often was there discussion about the intent and limitations of the rule-making authority being granted in the legislation. Keep in mind that these rules, once promulgated, have the effect of law and are enforceable by the executive branch. When Rod Blagojevich was governor, he refused to follow some of the rules and called JCAR “advisory.” The Illinois Supreme Court ruled otherwise when a pair of GOP operatives took Blagojevich to court. The court upheld the authority of JCAR as created by the 1978 Procurement Act.
Since these rules, written and proposed by bureaucracies and enforceable as law, can have a major effect on your life, you might wonder what this promulgation process entails.
The process of promulgation could be the subject of a full-length course. In short, it begins with the rule being written by a state agency, board or commission granted that authority by law. The drafting of the proposed rule is not subject to public input. However, it then must be posted twice for public review and comment. The first notice must be published in something called the Illinois Register for at least 45 days. The second period is also 45 days and can include changes made to the rule. A third period of 45 days can also be added under certain circumstances. It can take up to a year in rare cases.
Eventually, the proposed rule is sent to JCAR for final action. JCAR is a quasi-legislative bipartisan panel of 12 elected officials — six Democrats and six Republicans appointed by the leaders of each of the four caucuses representing the Senate and House. They review the rule and determine whether it meets the requirement of being within the authority provided in the underlying statute or if it oversteps the authority granted.
JCAR can approve the rule with a Certificate of No Objection, make recommendations for changes, object, or issue a Filing Prohibition/
If the rule is approved with a Certificate of No Objection, the agency adopts the rule and files it with the secretary of state. It then becomes enforceable. A JCAR declaration of Prohibition or Suspension is a determination that the proposed rule is a threat to the public interest, safety or welfare. Then, by a three-fifths vote, JCAR can prohibit the filing of the proposed rule.
All of this came to light recently when high-profile rules passed by the Illinois Department of Public Health and State Board of Education came under scrutiny. As a lawmaker, I was always concerned with the authority that the General Assembly punted to state agencies and JCAR. Lately, maybe the public is also becoming concerned.