Skip to main content Skip to office menu Skip to footer
Capital IconMinnesota Legislature

The RULE of law

Published (3/9/2012)
By Nick Busse
Share on: 



Rep. Michael Beard, left, and lobbyist Lisa Frenette discuss HF2169 with members of the House State Government Finance Committee March 6. The bill would increase legislative scrutiny of administrative rules. (Photo by Paul Battaglia)Jerry Zubay knows the cost of regulations. As a restaurant owner, he has a veritable army of government entities policing, inspecting and picking apart every aspect of his business.

“I don’t have anybody there from the nuclear waste commission; other than that, pretty much everybody has their sights on me,” Zubay said.

His experiences with regulators range from the annoying — having to pay a master electrician to install a lock box on a light switch located 12 feet off the ground — to the comical. One agency insisted that he install a sprinkler system inside of his new 6,500-pound wood-burning pizza oven, then changed their mind and told him to put a garden hose next to it in case of emergencies.

Zubay said the rules and regulations he has to follow, while well-intentioned, are costly, time-consuming and ultimately harmful to his business. And during his 40 years in the industry, he said the problem has worsened as new rules are piled on top of old ones.

“I’m not impugning these people or their departments; they’re doing their job. But when they’re doing their job, I can’t do my job,” Zubay told a Senate committee Feb. 22.

The over-reach of government is not a new complaint from the business community. But what many might not realize is that the rules that apply to businesses often come not from elected officials, but rather from professional regulators at state agencies. This happens through a process known as “administrative rulemaking.”

Here’s how rulemaking works: Let’s say lawmakers want to protect the public from tainted food. Rather than spend time at the Legislature debating how to do this, they enact a law delegating that authority to experts at the Health Department. Health officials study the issue, meet with stakeholders and take input from the public before finally adopting a set of administrative rules that describe how to safely cook, store and serve food.

For people like Zubay, those rules take on the full force of law. And oftentimes there’s not just one code for them to follow, but many. In Zubay’s case, there are health codes, building codes, liquor regulations and many others.

An ‘avalanche’ of rules

Administrative rules have been around since the early 20th century, and are generally considered part and parcel to governing a complex society. But as they’ve accumulated over the course of many decades, some have argued these rules have become a barrier to economic growth as well as basic freedoms.

The problem isn’t just the number of rules — which now rival statutes in terms of sheer volume. Rep. Mike Beard (R-Shakopee) said the problem is also that lawmakers and the public aren’t kept in the loop about what he calls “an avalanche of rulemaking.”

“We’re beleaguering our poor citizens with rules they don’t even see coming until they see the flashing lights in the mirror or they get the nasty letter in the mail saying, ‘you’ve been summoned and you’re being fined,’” he said.

Beard said lawmakers often don’t find out when agencies adopt rules that are handed down by the federal government, or that they promulgate on their own authority without any direction from the Legislature. He said legislators often find out what agencies are up to only after hearing a complaint from an angry constituent.

“You have a trucker, for instance, that gets pulled over on a logbook violation that six months ago didn’t exist. … Where’d that rule come from? These things — they keep happening” he said.

Beard is one of many Republican lawmakers who have come forward this year with bills that would reform administrative rulemaking. The proposals they’ve laid out range from strengthening legislative oversight of rulemaking (Beard’s HF2169) to imposing a two-year moratorium on new rules (HF2211), sponsored by Rep. Tom Hackbarth (R-Cedar).

But as lawmakers are finding out, curbing agencies’ rulemaking power isn’t as easy or simple as it might seem.

Technocrats or experts?

Critics of rulemaking contend that legislators have given up too much power to the executive branch. One lawmaker who hopes to correct this is Rep. Doug Wardlow (R-Eagan).

Wardlow sponsors HF1831 that would require legislative approval of rules that have a significant economic impact. The bill is meant to address what he calls “the soft tyranny of unelected technocrats.”

“What happens when you have this multiplication of rules and delegation of legislative authority to unelected civil servants? It undermines the rule of law and undermines representative democracy,” he said at a Jan. 31 hearing.

Many struggling small business owners and frustrated legislators would probably agree. In practice, however, greater legislative oversight over administrative rulemaking comes at a price.

Delegating rulemaking authority to the executive branch allows legislators to farm out the technical aspects of lawmaking to people who are experts in their respective fields. Putting that responsibility back in lawmakers’ hands could mean forcing them to hash out issues like how many walleye anglers should be allowed to take from specific lakes, how thick protective liners underneath landfills should be, and how to update the diagnostic codes used by insurance companies and health care providers.

Even if lawmakers wanted to review every administrative rule handed down by agencies, critics argue it would be logistically impossible. Michelle Beeman, an assistant commissioner at the Pollution Control Agency, said legislators would quickly find themselves bogged down with highly technical issues.

“Those are the details that are in our rules that, really, the Legislature shouldn’t be bothered with. You want those engineers and experts to be the ones wrestling with it,” Beeman told a House committee Jan. 31.

Moreover, agencies argue they’re being falsely maligned as power-hungry bureaucrats when in fact they’re only doing what the Legislature asked of them.

“These rules are put together for safety and health reasons, not just because we’re trying to hurt small businesses,” said John Rajkowski, director of governmental relations for the Department of Labor and Industry.

Finding a compromise

Proposals to require legislative approval of rules or stop rulemaking altogether appear to be moving slowly through the House. But Beard’s bill, HF2169, appears to be gaining momentum.

Beard supports a less aggressive approach. His bill would strengthen the Legislature’s ability to object to proposed rules and create a more thorough process for reviewing the ones already in place.

“I want the Legislature to be more engaged,” Beard said.

Technically, lawmakers already have the power to legislate away any administrative rule they disagree with. They rarely use that power, however, and Beard said many legislators aren’t even aware that it exists. If nothing else, he hopes his bill can rectify that situation.

Critics warn that even Beard’s bill is flawed, in that it asks lawmakers to take on a seemingly unreasonable task: reviewing hundreds of chapters of administrative rules. Beard isn’t fazed.

“We’re going to have homework to do, that’s right. But it’s time we stopped whining and stepped up and realized that we’re part of the solution,” he said.

Perhaps not surprisingly, the executive branch tends to resist intrusions on its authority. Both Gov. Mark Dayton and former Gov. Tim Pawlenty have vetoed efforts to place even modest limitations on rulemaking. Beard said he’s hopeful his bill, which has bipartisan support, will be received differently.

Session Weekly More...


Session Weekly Home



Related Stories


A session of compromise
Successes, disappointments and controversies mark 2012 session
(view full story) Published 5/25/2012

Minnesota Index: 2012 session
Facts and statistics on the 2012 legislative session
(view full story) Published 5/25/2012

Drawing to an uncertain close
Major bills are in limbo as the end of session looms
(view full story) Published 4/27/2012

Greene exits House after one term
Redistricting costs early childhood advocate a seat at the Capitol
(view full story) Published 4/27/2012

Going home to put out different fires
LeMieur plans to spend more time with sons
(view full story) Published 4/27/2012

Education funding champion
Dittrich says serving was ‘just the perfect pinnacle experience’
(view full story) Published 4/20/2012

Complicated road to the Senate
Koenen wins one Senate seat, but hopes to switch to another
(view full story) Published 4/20/2012

Putting family first
Kriesel steps down after a brief but eventful first term
(view full story) Published 4/20/2012

Educator, lawmaker, advocate, mom
Slawik prepares to leave on a high note for her key issue: early childhood
(view full story) Published 4/20/2012

Wanting to go to Washington
After one term, Bills seeks to serve Minnesota in the nation’s capitol
(view full story) Published 4/6/2012

Hilty: ‘It’s time’
Pragmatic legislator best known as renewable energy advocate
(view full story) Published 4/6/2012

A family man heads home
Shifting priorities cause for Hosch to step down
(view full story) Published 4/6/2012

A distinctive voice departs
A staunch conservative, Buesgens was more principled than partisan
(view full story) Published 3/30/2012

Breakfasts with Bobby to continue
Champion hopes to inform constituents over a cup of ‘Joe’
(view full story) Published 3/30/2012

First and last term
After two years in St. Paul, Mazorol plans to rejoin the private sector
(view full story) Published 3/30/2012

‘Stepping up’ to Senate race
Westrom hopes to continue renewable energy advocacy in different chamber
(view full story) Published 3/30/2012

Stepping down and across new lines
Doepke plans to take her education focus to the Senate
(view full story) Published 3/23/2012

One less Anderson in the House
‘Anderson, B.’ strives to put people first, rather than government
(view full story) Published 3/23/2012

An educated first term
After two years in House, Petersen looks to join the Senate
(view full story) Published 3/23/2012

Artist and advocate for natural resources
After eight years in House, Scalze to run for Senate
(view full story) Published 3/16/2012

Just call her Mary
New district has Kiffmeyer hoping to break bread with senators
(view full story) Published 3/16/2012

The RULE of law
Lawmakers consider reigning in agencies’ rulemaking powers
(view full story) Published 3/9/2012

Continuing his public service
Eken running for open Senate seat to avoid race with close friend
(view full story) Published 3/9/2012

Renewable energy advocate
Knuth proud of her accomplishments in the House
(view full story) Published 3/9/2012

Family calls him back home
Murdock leaves with better understanding of the district he has served
(view full story) Published 3/2/2012

Equal representation for 5,303,025
A special feature on Minnesota's legislative redistricting.
(view full story) Published 2/24/2012

Collaboration over discipline
Whips rely on communication as session moves forward
(view full story) Published 2/24/2012

Editor's Note
No 'First Reading' story this week
(view full story) Published 2/17/2012

Changing the rules, mid-game
Land use spat pits developers against cities, environmentalists against business
(view full story) Published 2/3/2012

So many rules, so little time
Lawmakers debate the wisdom of curbing agencies’ rulemaking powers
(view full story) Published 2/3/2012

Big plans, short session
Vikings, bonding, government reform top the agenda in 2012
(view full story) Published 1/27/2012

Always looking to help others
Allen brings her fight for social and economic justice to the House
(view full story) Published 1/27/2012

The Dance of Legislation has started
Numerous bonding proposals highlight first bill introductions of 2012 session
(view full story) Published 1/27/2012

Minnesota Index: Session 2012
Facts and statistics about legislative sessions past and present.
(view full story) Published 1/27/2012

Pension changes now law
Local employee plans to join statewide plan
(view full story) Published 8/11/2011

Small budget, big changes
State government finance law includes plans for government reform
(view full story) Published 8/11/2011

State of uncertainty
Budget stalemate, government shutdown leave Minnesota in limbo
(view full story) Published 7/15/2011

Freshmen power
Zeal for reform influences session agenda
(view full story) Published 7/15/2011

Too much reform?
Gov. Dayton says state government bill too aggressive in proposed cuts
(view full story) Published 7/15/2011

Minnesota Index: 2011 regular session
Facts and statistics from the 2011 legislative session.
(view full story) Published 7/15/2011

Special session? Not so special anymore
Number 50 since statehood could be imminent
(view full story) Published 5/20/2011

State of disrepair
Lawmakers look to fix a crumbling Capitol Building
(view full story) Published 5/13/2011

Minnesota Index: Older Minnesotans
Facts and statistics on aging in Minnesota
(view full story) Published 5/6/2011

Rangers in a strange land
Iron Range lawmakers stick together at the Capitol
(view full story) Published 4/15/2011

Black and Light
A photo essay
(view full story) Published 4/8/2011

Beyond budget cuts
Finance bill heralds big changes for state government
(view full story) Published 4/8/2011

Minnesota Index: State demographics
Facts and statistics on the state's population
(view full story) Published 4/8/2011

The long and winding road
Omnibus bills morph and change all along the way for a purpose, tax chair says
(view full story) Published 3/25/2011

Betting on change
Budget bill would restructure state government
(view full story) Published 3/25/2011

Blueprint for change
What would a redesigned state government look like?
(view full story) Published 3/11/2011

The big reboot
To help cut costs, lawmakers look to technology improvements
(view full story) Published 3/11/2011

Remembering Ed Burdick
Former chief clerk passes away
(view full story) Published 3/11/2011

From staffer to representative
Melin wins special election to become newest Iron Range member
(view full story) Published 3/4/2011

Melin wins special election
New member takes seat formerly held by Sertich
(view full story) Published 2/18/2011

Minnesota Index: Celebrating black history month
Figures and statistics on black Minnesotans
(view full story) Published 2/18/2011

At Issue: Address is a snapshot of hard times
Governor pledges funding for education, all-day kindergarten
(view full story) Published 2/11/2011

A farmer with wings (New Member)
Green acres is Daudt’s place to be
(view full story) Published 2/11/2011

From daycare mom to legislator (New Member)
Franson commits to practicing kindness, likes to see others follow
(view full story) Published 2/11/2011

Rural Republican’s challenge (New Member)
Hancock says government’s role important in supporting small communities
(view full story) Published 2/11/2011

Runbeck the reformer (New Member)
New members’ senior has her eye on property tax reform
(view full story) Published 2/11/2011

From volunteer advocate to member (New Member)
Anderson now has an office in building she used to roam as activist
(view full story) Published 2/4/2011

Cutting through the red tape (New Member)
Benson hopes to reduce bureaucracy, empower people
(view full story) Published 2/4/2011

Following Willard Munger’s trail (New Member)
Gauthier strives to give voice to working class
(view full story) Published 2/4/2011

Charting her own course (New Member)
Kieffer focuses on better schools and business climate
(view full story) Published 2/4/2011

The ‘beet’ goes on (New Member)
Kiel brings agricultural, educational experience to Capitol
(view full story) Published 2/4/2011

A soldier on a new mission (New Member)
Kriesel hopes to bring civility to the Capitol
(view full story) Published 2/4/2011

Standing up to Goliath (New Member)
Schomacker’s district on the frontline of keeping business
(view full story) Published 2/4/2011

Politics with his pancakes (New Member)
Woodard goes from breakfast with his buddies to the House
(view full story) Published 2/4/2011

Preserving an engineering feat
Capitol dome repairs hope to preserve Minnesota’s statehouse for many years
(view full story) Published 1/28/2011

Leading by example (New Member)
An economic wonk, Bills wants to use his background to create solutions
(view full story) Published 1/28/2011

A third call to duty (New Member)
Leidiger says his obligation is ‘to right-size government’
(view full story) Published 1/28/2011

Second run’s a charm (New Member)
Focused on government’s role, Lohmer hopes to make ‘significant change’
(view full story) Published 1/28/2011

Start early and stay late (New Member)
For Murray, new role offers much to learn and many challenges
(view full story) Published 1/28/2011

Taking part in another endeavor (New Member)
Quam’s varied background will help him make the hard decisions
(view full story) Published 1/28/2011

A Minnesota marketer (New Member)
Stensrud believes state needs to do a better job of selling itself
(view full story) Published 1/28/2011

Professor turned legislator (New Member)
Banaian goes from the classroom to the House
(view full story) Published 1/21/2011

Numbers guy (New Member)
Barrett hopes to help bring fiscal management to Capitol
(view full story) Published 1/21/2011

‘Make a difference’ (New Member)
Greene considers herself a person who can unite others
(view full story) Published 1/21/2011

Priorities based on data (New Member)
Gruenhagen doesn’t favor across-the-board cuts
(view full story) Published 1/21/2011

Firsthand information (New Member)
LeMieur brings his business background to the Capitol
(view full story) Published 1/21/2011

A brighter future (New Member)
Mazorol plans to focus on budget, business
(view full story) Published 1/21/2011

Snapshot of Delano leader (New Member)
McDonald follows in his father’s footsteps
(view full story) Published 1/21/2011

Myhra goes from home to House (New Member)
Dedicated door-knocking key to election success
(view full story) Published 1/21/2011

A new way to serve (New Member)
O’Driscoll continues a long record of public service
(view full story) Published 1/21/2011

A fast learner (New Member)
Petersen says state should practice ‘kitchen table budgeting’
(view full story) Published 1/21/2011

The bills have landed
First two House files focus on economy, budget
(view full story) Published 1/14/2011

Final Reading
Sertich steps down
(view full story) Published 1/14/2011

Putting his theories to the test (New Member)
Crawford brings big ideas, practical experience to St. Paul
(view full story) Published 1/14/2011

Steeped in Tea Party values (New Member)
Back for her seventh term, Erickson aims to improve schools
(view full story) Published 1/14/2011

Fabian hits the ground running (New Member)
Track coach and high school teacher wants to keep jobs in Minnesota
(view full story) Published 1/14/2011

Focused and determined (New Member)
McElfatrick hopes to strengthen Iron Range economy
(view full story) Published 1/14/2011

Going from homeless to the House (New Member)
Moran used hard work to improve self, wants to help others
(view full story) Published 1/14/2011

Welding the economy back together (New Member)
Swedzinski brings rural development experience to the House
(view full story) Published 1/14/2011

A reformer in the House (New Member)
Vogel brings focus on agriculture; hopes to streamline state government
(view full story) Published 1/14/2011

Looking to give the state a fresh start (New Member)
Wardlow seeks fiscal stability, better jobs climate in Minnesota
(view full story) Published 1/14/2011

Ready for the challenge
2011 session underway with changes aplenty
(view full story) Published 1/7/2011

Let the people’s work begin
Activists, lobbyists, members’ families mark day one of 2011 session
(view full story) Published 1/7/2011

Minnesota Index: Minnesota House 2011
Figures and statistics about the Minnesota House of Representatives.
(view full story) Published 1/7/2011