Bill would expand administrative judges’ power to strike down government rules | Eastern NC Now

    Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.

    North Carolina could see a new tool in the fight against excessive state regulation. A bill filed in the state House offers a new way to strike down bad rules.

    Rep. Sarah Stevens, R-Surry, filed House Bill 991 Wednesday. It would expand an administrative law judge's ability to declare state agency rules void.

    Current state law permits an ALJ to determine that a rule is void "as applied in a particular case." Stevens' proposal would delete the phrase about particular cases. In other words, the judge could determine the rule is void for all cases.

    An administrative judge could make that decision under any one of three sets of circumstances. First, the rule "is not within the statutory authority of the agency." State or federal law has not given the government the power to enact the rule.

    Second, "it is not clear and unambiguous to persons it is intended to direct, guide, or assist." Third, it "is not reasonably necessary to enable the agency to fulfill a duty delegated to it by the General Assembly."

    "This seems eminently reasonable," said Jon Guze, senior fellow in legal studies for the John Locke Foundation. "Administrative rules should be 'within the statutory authority of the agency,' 'clear and unambiguous,' and 'reasonably necessary to enable the agency to fulfill a duty delegated to it by the General Assembly.'"

    "Rules that fail those simple tests violate the state constitution in all kinds of ways, and judges should be able to strike them down," Guze added. "Giving them that power would significantly slow the expansion of the administrative state in North Carolina and promote justice and the rule of law."

    The state's Office of Administrative Hearings operates as "an independent quasi-judicial agency that was established to provide a source of independent administrative law judges to preside in administrative law contested cases," according to the OAH website. "It was created to ensure that the functions of rulemaking, investigation, advocacy, and adjudication are not combined in the administrative process."

    The House has assigned Stevens' bill to a judiciary committee.