« Courts - "US District Court Says Kentucky Bar Can Restrict Attorney Speech" | Main | Ind. Gov't. - More on: Concerns re SB 159 »

Tuesday, April 12, 2011

Ind. Gov't. - Concerns re SB 159

ILB thoughts: Here is a bill that, IMHO, is destined, if passed, to spend much time in litigation. Why do I think so?

It is pretty basic law that the General Assembly cannot delegate its legislative authority to, for instance, the federal government. For example, Indiana's tax laws rely on federal laws and regulations. Indiana by statute incorporates the federal regs as of a specific date into Indiana law. But Indiana can not automatically adopt any updates or other revisions the feds may make to the regs, as that would be delegating Indiana legislative authority to the federal government. (In other words, it cannot simply adopt the IRS Code "as it exists now or may be amended in the future.") As noted in this April 11, 2007 ILB entry:

For instance, look at IC 6-3-1-11. This section defines what the Indiana Code means when it references the federal "Internal Revenue Code." The federal law changes nearly every year.

Does a reference in Indiana law to the "Internal Revenue Code" incorporate all the latest changes made by Congress? Yes, but only because the Indiana law is changed each year to reflect the most recent version of the IRS.

For instance, IC 6-3-1-11 currently begins: "(a) The term "Internal Revenue Code" means the Internal Revenue Code of 1986 of the United States as amended and in effect on January 1, 2006." [ILB: and as of this writing it says "2010"] Looking at the history of the section, you will see that it has been amended nearly every year to keep it in sync with the federal version.

So the General Assembly cannot pass a law and give away its constitutional authority to the federal government.

But now look at SB 159. It seems to do just that, on p. 3, (g)(1).

It says if a federal environmental law, rule or regulation is repealed by a subsequent federal legislative action, "then that part of the adopted [Indiana] rule that corresponds to the repealed ... federal law, rule, or regulation is void as of the effective date of the legislative or administrative action repealing or otherwise nullifying the federal law, rule, or regulation."

Posted by Marcia Oddi on April 12, 2011 02:38 PM
Posted to Indiana Government