What did Idaho's AG say about a 2003 initiative to exempt food from Idaho sales tax by referring to the federal food stamp eligibility list?

Plain-English summary

This is the AG's review (under Idaho Code § 34-1809) of a ballot initiative filed February 12, 2003, to exempt "food products" from Idaho's sales and use tax (Idaho Code §§ 63-3601 et seq.).

The constitutional problem: the proposal defined "food products" as items "that can be purchased by food stamps issued by the Department of Agriculture of the United States of America" with reference to 7 C.F.R. § 271.2 "as it presently reads, or as it may be amended to read in the future."

The "as it may be amended to read in the future" language is the issue. Idaho Const. art. III, § 1 vests Idaho's legislative power in the Senate, House, and Idaho voters. The Idaho Supreme Court has held that Idaho cannot delegate that legislative power to other governments (State v. Nelson, 36 Idaho 713 (1923)). In Idaho Savings & Loan Ass'n v. Roden, 82 Idaho 128 (1960), the Court struck down an Idaho statute that conditioned local savings-and-loan operations on compliance with future federal banking regulations, holding it was an unconstitutional delegation of authority.

Tying Idaho's sales-tax base to a federal regulation as that regulation "may be amended to read in the future" runs into the same problem. Future federal regulators could change which items qualify as "food products" eligible for food stamps, and that change would automatically alter Idaho's sales-tax exemption without any action by Idaho's Legislature or voters.

The fix would be to incorporate the federal definition by reference "as it reads on" a specific date, with future updates requiring affirmative Idaho legislative action.

Currency note

This opinion was issued in 2003. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The non-delegation principle from Roden (1960) reflects long-standing Idaho doctrine and remains generally applicable. Idaho's sales-tax structure has been amended many times since 2003, including changes to the grocery tax credit. The federal food stamp regulation 7 C.F.R. § 271.2 has also been amended. Anyone analyzing a similar initiative today should pull current statutes and regulations.

Common questions

Q: Did this initiative make the ballot?
A: This certificate addressed only the legal form of the proposal. The petition did not qualify for the ballot. Idaho's grocery tax credit (Idaho Code § 63-3024A and following) provides some offsetting relief but does not exempt food from sales tax.

Q: Why is "automatic conformance to future federal regulations" unconstitutional?
A: Because it makes Idaho's law change automatically when federal regulators change a federal regulation, without any input from Idaho's elected officials or voters. That effectively delegates Idaho's legislative power outside Idaho. The Idaho Constitution vests legislative power in the Senate, House, and the people through initiative; it does not let Idaho cede that power to others.

Q: How would the petitioner fix this?
A: By incorporating the federal definition "as it reads on [specific date]" rather than "as it may be amended to read in the future." Static incorporation by reference is constitutionally permissible. Dynamic conformance to future federal regulations is not.

Q: Could Idaho exempt food from sales tax some other way?
A: Yes, by defining "food products" directly in Idaho statute, by adopting an Idaho-specific list, or by setting up an Idaho administrative process to maintain the exemption list. The defect was the delegation, not the policy choice to exempt food.

Background and statutory framework

Idaho's Sales Tax Act (Idaho Code §§ 63-3601 et seq.) imposes a sales tax on retail sales of tangible personal property. Food and groceries have long been a subject of policy debate in Idaho, with the state oscillating between full taxation, exemption, and a grocery-tax-credit approach.

The federal food stamp program (now SNAP, Supplemental Nutrition Assistance Program) defines eligible food in 7 C.F.R. § 271.2.

Citations and references

Statutes and regulations:
- Idaho Code §§ 34-1809, 63-3601 et seq.
- 7 C.F.R. § 271.2
- Idaho Const. art. III, § 1

Cases:
- State v. Nelson, 36 Idaho 713 (1923)
- Idaho Savings & Loan Ass'n v. Roden, 82 Idaho 128 (1960)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C030503.pdf

Original opinion text

March 5, 2003

The Honorable Ben Ysursa
Secretary of State
HAND DELIVERED

Re: Certificate of Review – Proposed Initiative to Create a Sales Tax Exemption for Food

Dear Mr. Ysursa:

An initiative petition was filed with your office on February 12, 2003. Pursuant to Idaho Code § 34-1809, this office has reviewed the petition and prepared the following advisory comments. It must be stressed that, given the strict statutory time frame in which this office must respond and the complexity of the legal issues raised in this petition, this office's review can only isolate areas of concern and cannot provide in-depth analysis of each issue that may present problems. Further, under the review statute, the Attorney General's recommendations are "advisory only." The petitioners are free to "accept or reject them in whole or in part." The opinions expressed in this review are only those which may affect the legality of the initiative. This office offers no opinion with regard to the policy issues addressed or the potential revenue impact to the state budget.

[The full certificate runs several pages with sections on Ballot Title; Matters of Substantive Import (A. A Function of the Legislature Cannot Be Delegated to Another Entity, with discussion of Nelson and Roden); and Conclusion. See the linked PDF for the complete text.]

Sincerely,

LAWRENCE G. WASDEN
Attorney General