Separation of Powers: Delegation of Legislative Power

Statutory Law printed on paper

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

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.  Also, please contact Brenda if you would like to recommend legislative resources or case law that may enhance the Separation of Powers website.