Extending health benefits to domestic partners of government employees is a fiercely contentious issue. Arizona voters decided last year not to prohibit such benefits, but efforts to create them have come up empty in the state legislature.
No problem, says the Department of Administration, a state executive agency: we'll mandate insurance coverage for domestic partners of state employees and retirees by bureaucratic fiat. And it did just that in a proposed rule filed last November 30 to expand the term "dependent" to include domestic partners.
State agencies are not omnipotent; our state Supreme Court has ruled that agencies "have no common law or inherent powers-their powers are limited by their enabling legislation."State law gives the department authority to administer insurance for state employees-but no fewer than six statutes clearly define "dependents," all of them encompassing spouses and children but clearly not domestic partners.
Likewise, state agencies are not allowed to make budget appropriations (can you imagine if they were?); yet this regulation will cost millions of dollars every year. So in one fell swoop the agency has usurped two fundamental legislative powers: policymaking and appropriations.
The Arizona Republic applauded the move, saying "Arizona is preparing to take an obvious, practical, and fair step." No, it isn't. An administrative agency is not the state. We have a constitutionally ordained way of making law and policy, and bureaucratic fiat is not it.
No matter how one feels about the underlying policy issue, it is vital to preserve the separation of powers that helps limit government overreaching. If domestic partner benefits are created, it should be by the people directly or through their elected officials-not through unelected bureaucrats. The Governor should halt this proposed rule before it becomes effective, or surely will face a legal challenge whose resolution should not be a close call.
Clint Bolick is the director of the Scharf-Norton Center for Constitutional Litigation at the Goldwater Institute.
Arizona Republic: Being Smart, Fair
Phoenix Business Journal: Napolitano gets flack over plan to offer domestic partner benefits to state workers