Separation of Powers—Delegation of Legislative Power

Contents

Contacts

  • Brenda Erickson
  • Kae Warnock
  • If you have any questions, please contact Brenda in NCSL's Denver office at (303) 364-7700.  Also, please email us if you would like to recommend legislative resources or case law that may enhance the Separation of Powers website.

scalesBackground 

Delegation (or non-delegation) of legislative power has been a topic of discussion in the United States for centuries. In 1690, in his Second Treatise of Civil Government, John Locke wrote:

The Legislative cannot transfer the Power of Making Laws to any other hands. For it being but a delegated Power from the People, they, who have it, cannot pass it over to others…And when the people have said, We will submit to rules, and be govern’d by Laws made by such Men, and in such Forms, no Body else can say other Men shall make Laws for them; nor can the people be bound by any Laws but such as are Enacted by those, whom they have Chosen, and Authorised to make Laws for them. The power of the Legislative being derived from the People by a positive voluntary Grant and Institution, can be no other, than what the positive Grant conveyed, which being only to make Laws, and not to make Legislators, the Legislative can have no power to transfer their Authority of making laws, and place it in other hands. 


Under constitutional separation-of-powers provisions, laws are enacted by the legislature, administered by the executive and interpreted by the judiciary. Can legislatures be expected to ratify statutes that address every minute detail of policy? The most probable answer is “no.” Therefore, it may be realistic to permit delegation of some legislative powers. Questions typically arise, however, over which powers can be delegated, to whom and to what extent. 

The U.S. Supreme Court has allowed some delegation of legislative power. In Wayman v. Southard (1825), Chief Justice John Marshall distinguished between “important subjects” and “mere details.” He wrote that “a general provision may be made, and the power given to those who are to act under such general provision, to fill up the details.” 
In Mistretta v. United States (1989), the U.S. Supreme Court applied the “intelligible principle” test. The Court deemed it “constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.” 

The ability to delegate legislative authority varies among the states. Researchers often divide the states into three general groups: 

  • The “strict standards and safeguards” category. States in this category permit “delegation of legislative power only if the statute delegating the power provides definite standards or procedures” to which the recipient must adhere.

  • The “loose standards and safeguards” category. States in this category view delegation as acceptable “if the delegating statute includes a general legislative statement of policy or a general rule to guide the recipient in exercising the delegated power.”

  • The “procedural safeguards” category. States in this group “find delegations of legislative power to be acceptable so long as recipients of the power have adequate procedural safeguards in place.


Resources

Alaska: Division of Legal and Research Services, Delegation of authority to a gaming commission, March 2006.
Alaska: Senior Assistant Attorney General Memorandum, File No. 663-05-0141, “Power of the Legislature to authorize Board of Trustees of Alaska Permanent Fund Corporation to designate investment subject only to the Prudent Investor Rule,” 2005.
Congressional Research Service: Robert Meltz, Legislative Attorney, American Law Division, Constitutional Constraints on Congress’ Ability to Protect the Environment, 2000.
Kansas: Attorney General’s Opinion No. 99-3, “Public Health--Regulation of Nursing; Nurses-Licensure,” February 1999
Kentucky: Attorney General’s Opinion No. 99-2, “Conferring of degrees and granting diplomas by the University of Kentucky to community college students,” 1999.
Massachusetts: Benjamin McGovern, Reexamining the Massachusetts Nondelegation Doctrine: Is the “Areas of Critical Environmental Concern” Program An Unconstitutional Delegation of Legislative Authority?
Montana: Legal Services Office, Montana Legislative Services Division, Delegations of Legislative Authority, January 2008
NCSL: Mason’s Manual of Legislative Procedure, 2000 edition, Section 51, “Delegation of Power” and Section 518, “A Legislative Body Cannot Delegate Its Powers.” 
Nicholas Szabo: Origins of the Non-Delegation Doctrine
South Carolina: Attorney General’s Opinion, February 2006
South Carolina: C. Victor Pyle III, Potential Separation of Powers and Non-delegation Issues Regarding the Legislative Review of Executive Agency Rules and Regulations in South Carolina, 2003.
South Dakota: Attorney General’s Opinion No. 75-47, “South Dakota High School Interscholastic Activities Association,” March 1975
Tennessee: Attorney General’s Opinion No. 05-075, “Powers of Legislature to Delegate Power to an Executive Committee,” 2005
Washington: Attorney General’s Opinion AGO 49-51 No. 268, “Control of Appropriations by the Legislature,” May 1950
Washington: Attorney General’s Opinion AGO 53-55 No. 177, December 1953
Wisconsin: Wisconsin Legislative Reference Bureau, The Delegation Doctrine, 2004

 

Case Law

Federal: The Brig Aurora v. United States (1813)
Federal: Wayman v. Southard, 23 U.S. (10 Wheat) 1(1825)
Federal: Field v. Clark, 143 U.S. 649 (1892)
Federal: Mistretta v. United States, 488 U.S. 361 (1989)
Alaska: Alaska v. A.L.I.V.E. Voluntary, 606 P.2d 769 (1980)
California: California Radioactive Materials v. DHS, 15 Cal. App. 4th 841, 19 Cal. Rptr. 2d 357 (1993)
Colorado: Partridge v. Colorado, 895 P.2d 1183 (Colo. 1995)
Florida: Florida v. Carswell, 557 So.2d 183 (Fla. 1990)
Florida: Ameraquatic v. Florida, 651 So.2d 114 (Fla. 1995)
Hawaii: Hawaii v. Christie, 70 Haw. 158, 766 P.2d 1198 (1988)
Illinois: Gillett v. Logan County, 67 Ill. 256 (1873)
Kansas: Kansas ex rel. Schneider v. Bennett, 219 Kan. 285, 547 P.2d 786 (1976)
Kentucky: LRC v. Brown, 664 S.W.2d 907 (1984)
Louisiana:   Louisiana v. Broom, 439 So.2d 357 (La. 1983)
Maryland: Opinion of Justices, 49 Md. App. 300, 431 A.2d 738 (1981)
Massachusetts: Attorney General v. Brissenden, 271 Mass. 172, 171 N.E. 82 (1930)
Mississippi: Dye v. Mississippi, 507 So.2d 332 (Miss. 1987)
Missouri: Missouri ex inf. Danforth v. Merrell, 530 S.W.2d 209 (Mo. 1975)
New York: Bd. Of Cmm’rs of Excise of Delaware County v. Sackrider, 8 Tiffany 154, 35 N.Y. 154 (1866)
In re Leach, 115 Misc. 660, 190 N.Y.S. 135 (1921)
Oklahoma: Ralls v. Wyand, 40 Okla. 323, 138 P. 158 (1914)
Pennsylvania: Pennsylvania Medical Providers Ass’n. v. Foster, 582 A.2d 888 (Pa. Cmmw. Ct. 1990)
Tennessee: McFaddin v. Jackson, 738 S.W.2d 176 (Tenn. 1987)
Utah: Utah v. Green, 793 P.2d 912 (Utah 1990)
West Virginia: Dancer v. Mannington, 50 W. Va. 322, 40 S.E. 475 (1901)
West Virginia: Common Cause of W. Va. V. Tomblin, 186 W. Va. 537, 413 S.E.2d 358 (1991)
Wisconsin: Wisconsin ex rel. Arnold v. City of Milwaukee, 157 Wis. 505, 147 N.W. 50 (1914)
Wisconsin: State ex. rel. Wisconsin Inspection Bureau v. Whitman, 196 Wis. 472, 505-06 (1928)
Wisconsin: Watchmaking Examining Board v. Husar, 49 Wis. 2d 526, 536 (1971)


Receiving Information or Recommending Additions

If you have any questions, please contact Brenda Erickson in NCSL's Denver office at (303) 364-7700.  Also, please contact Brenda if you would like to recommend legislative resources or cases that may enhance the Separation of Powers website.