Could a 2010 Idaho ballot initiative bar local governments from joining ICLEI or U.N. bodies?

Plain-English summary

The proposed initiative would have prohibited Idaho local governments from joining the International Council for Local Environmental Initiatives (ICLEI), now known as ICLEI -- Local Governments for Sustainability, or any United Nations body. ICLEI is a membership network of cities and counties that coordinate climate action and sustainability programs. The petition reflected a strain of opposition that gained traction in some state and local circles in 2009-2010 framing ICLEI membership as a sovereignty concern.

Attorney General Lawrence Wasden's certificate identified two main concerns:

1. Permissible as a public-funds limitation, but with no enforcement mechanism. The AG noted that prohibiting local governments from spending public funds to join particular organizations is generally within state legislative authority. But the initiative contained "significant penalty provisions" without identifying any reviewing or enforcing entity. The drafters apparently assumed the AG's office would enforce the Act, but the proposal did not say so explicitly or provide enforcement procedures.

2. Improper invasion of executive discretion. The initiative would have removed the AG's discretion to decline enforcement actions. The AG noted: "Such a limitation on discretion would likely not survive a constitutional challenge. The attorney general is an executive officer of the state. Idaho Const. art. IV, § 1. Initiative power is exercised under art. III, sec. 1 of the Idaho Constitution. As an exercise of legislative power, an initiative cannot invade the province of executive discretion. Idaho Const. art. II, § 1." This separation-of-powers point is a recurring concern with state initiatives that try to compel executive action.

The certificate also flagged a footnote concern about possible federal preemption if ICLEI membership intersects with federal-government-directed participation, though the AG declined to analyze that "local/federal/international" dynamic.

Currency note

This opinion was issued in 2010. 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.

Background and statutory framework

ICLEI was founded in 1990 and has been an active platform for local-government sustainability programs since. Some U.S. cities and counties withdrew from ICLEI in the 2010-2013 period under political pressure tied to broader concerns about international cooperation on climate policy.

The separation-of-powers concern the AG raised has broad application beyond this initiative. Initiatives that direct the AG to bring specific cases, or that strip prosecutorial discretion, run into the same Idaho Const. art. II / art. IV problem. The AG has executive authority that the initiative power, which is legislative under art. III, cannot override.

Common questions

Q: Can a state legislature limit how local governments spend public money?
A: Generally yes, with limits. State legislatures have broad authority over the powers delegated to political subdivisions. The AG's certificate suggested that a public-funds limitation on ICLEI or U.N. membership would likely be within state legislative authority, but flagged that it might still face federal-preemption issues if federal directives required participation in some related program.

Q: Why does the executive-discretion issue matter?
A: The AG must retain discretion to evaluate cases on their merits. An initiative or statute that compels the AG to bring every case of a certain type, regardless of the evidence or public interest, is in tension with the executive's constitutional role. See Idaho Const. art. IV, § 1 and the separation-of-powers principle in art. II, § 1.

Q: Did this initiative reach the ballot?
A: This is the certificate of review, the first step. The reader should consult Idaho Secretary of State election records to confirm whether the petition advanced.

Q: What is ICLEI?
A: ICLEI is an international association of local governments that share resources and coordinate on sustainability and climate-action programs. Membership is voluntary, fee-based, and aimed at municipal sustainability staff. The political opposition that drove this initiative concerned the perception that ICLEI membership represented a foreign-policy choice that should not be made at the local level.

Citations and references

Constitutional and statutory provisions:
- Idaho Code § 34-1809 (certificate of review)
- Idaho Const. art. II, § 1 (separation of powers)
- Idaho Const. art. III, § 1 (initiative power)
- Idaho Const. art. IV, § 1 (executive officers)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C021610e.pdf

Original opinion text

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN

February 16, 2010

The Honorable Ben Ysursa
Idaho Secretary of State
STATEHOUSE MAIL

Re:

Certificate of Review
Proposed Initiative Relating to Membership in Organizations Undermining U.S. Sovereignty

Dear Secretary of State Ysursa:
An initiative petition was filed with your office on January 19, 2010. Pursuant to Idaho Code § 34-1809, this office has reviewed the petition and has prepared the following advisory comments. Given the strict statutory timeframe within which this office must review the petition, our 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 that may affect the legality of the initiative. This office offers no opinion with regard to the policy issues raised by the proposed initiative.

BALLOT TITLES

Following the filing of the proposed initiative, this office will prepare short and long ballot titles. The ballot titles must impartially and succinctly state the purpose of the measure without being argumentative and without creating prejudice for or against the measure. While our office prepares titles for the initiative, petitioners may submit proposed titles for consideration. Any proposed titles should be consistent with the standard set forth above.

MATTERS OF SUBSTANTIVE IMPORT

Membership in Organizations Is a Policy Issue

This initiative seeks to directly prohibit local governments from joining the International Council for Local Environmental Initiatives as well as any entity of the United Nations. It appears that a prohibition of this nature may be permissible as a limitation on the expenditure of public funds. Although the provision contains significant penalty provisions, it does not contain any enforcement mechanism. In other words, if a county were to be in violation of this provision, who would be the reviewing or enforcing entity? Similarly, the initiative does not provide any entity with the authority to investigate a claim that one of the governmental entities has joined one of the prohibited organizations.

It appears that the initiative presupposes that the Office of the Attorney General would enforce this Act. But, it does not expressly state that fact, nor provide the means for enforcement. Additionally, the Act seeks to remove any discretion from the attorney general to refuse to bring an enforcement action. Such a limitation on discretion would likely not survive a constitutional challenge. The attorney general is an executive officer of the state. Idaho Const. art. IV, § 1. Initiative power is exercised under art. III, sec. 1 of the Idaho Constitution. As an exercise of legislative power, an initiative cannot invade the province of executive discretion. Idaho Const. art. II, §1. By removing the decisional authority of the attorney general in legal matters of the state, the initiative creates an improper exercise of executive power. Idaho Const. art. II, § 1.

CONCLUSION

As outlined above, this initiative raises a significant policy issue, and improperly invades the province of executive authority. Additionally, care should be exercised in the abridgement or termination of any exchange of ideas at any level of government.

CERTIFICATION

I HEREBY CERTIFY that the enclosed measure has been reviewed for form, style, and matters of substantive import. The recommendations set forth above have been communicated to the Petitioner via a copy of this Certificate of Review, deposited in the U.S. Mail to Alana Grimm, 2817 E. St. James Ave., Hayden, Idaho 83835-7544.

LAWRENCE G. WASDEN
Attorney General

Analysis by:

BRIAN P. KANE
Deputy Attorney General

(Footnote: But within this area, if the Federal government has directed participation, there may be preemption problems with this initiative as well. As this office is not well-versed in local/federal/international dynamics, this analysis is beyond the scope of this review. The Initiative proponents are encouraged to research and ensure that preemption has not occurred within this area.)