Authority to Promulgate Rules
Article VI of the Revised ICJ vests the Commission with broad rulemaking powers. Rules promulgated by the Commission have the force and effect of statutory law within member states and all state agencies and courts must give full effect to the rules. See, IV Section 2. See In re Dependency of D. F.-M., 236 P.3d 961 (WA 2010).
In adopting rules, the Commission is required to substantially comply with the “Model State Administrative Procedures Act,” 1981 Act, Uniform Law Annotated, Vol. 15, p. 1 (2000), or such other administrative procedures act that complies with due process requirements. ICJ’s process for adopting or amending rules according to Rule 2-103, includes, but is not limited to:
- Rules Committee Meetings
- Publication of Proposed Rule Changes
- 30-day Period for Public Comment
- Rules Committee Meeting to discuss Public Comment and Amend Proposals
- Publication of Modified Proposed Rules Changes
- Public Hearing
- Vote on Proposed Changes at ICJ’s Annual Meeting
Limits of Rulemaking Authority
The Commission’s rulemaking authority is limited by Article VI Section E, which provides that if a majority of state legislatures reject a Commission rule by enacting a statute to that effect, the rule has no force or effect in any member state. Consequently, a single state may not unilaterally reject a rule even if it adopts legislation to that effect. Rejection of a rule requires legislative action by a majority of the member states.
Challenging Commission Rules
The Revised ICJ provides a mechanism for challenging Commission rules. Under Article VI Section D, not later than sixty days after the promulgation of a rule, any interested party may file a petition in the United States District Court for the District of Columbia or the United States District Court in which the Commission has its principal offices (currently the United States District Court for the Eastern District of Kentucky) challenging the rule. If the court finds that the Commission’s action is not supported by substantial evidence in the rulemaking record, the court must declare the rule unlawful and set it aside. The Model State Administrative Procedures Act guides the determination as to whether substantial evidence exists to support the Commission’s action.
For more information, see Chapter 2 Section 2.9.2 of the ICJ Bench Book