Presentation Outline NCSL Professional Development Seminar – 2016 Salt Lake City, Utah Thomas R. Vaughn • Historical Perspective • Nature or Character • Reasons for Granting Rulemaking Authority • Lawful v. Unlawful Delegation • Preservation of Legislative Power • Drafting • Oversight Historical Legislative Perspective Power “The Legislative cannot transfer the power of Making Laws to any other hands. For it being but a delegated Power from the John Locke People, they, who have it, 1632-1704 cannot pass it over to others…” 1
Separation of Separation of Powers Powers “The accumulation of all Known for his powers, legislative, articulation of the executive, and judiciary, theory of Charles-Louis de Secondat, in the same hands . . . James Madison Baron de La Brède et de “separation of 1751-1836 Montesquieu may justly be 1689-1755 powers.” pronounced the very definition of tyranny. ” The Federalist Nature of Rulemaking Papers Authority “If we look into the constitutions of the several States, we find that . . . there is not a single instance in James Madison which the several 1751-1836 departments of power have been kept absolutely separate and distinct.” 2
Federal “But Congress may . . . devolve Non-delegation Doctrine upon administrative officers the ‘power to fill up the details' by prescribing administrative rules “That the legislative power of and regulations.” Congress cannot be delegated is, of course, clear.” United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 85, 53 S. Ct. 42, 44, 77 L. Ed. 175 (1932). United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 85, 53 S. Ct. 42, 44, 77 L. Ed. 175 (1932). Legislative or Executive Nature of Rulemaking Power? Authority in States “. . . the longstanding and much maligned doctrinal fiction that pretends that rulemaking is executive rather than legislative in nature . . .” Kathryn A. Watts 3
“In Michigan, the delegation doctrine provides that the “Delegations of legislative Legislature may delegate authority include delegations power that is legislative in of rulemaking authority . . .” nature . . .” Oshtemo Charter Twp. v. Kalamazoo Cty. Rd. Comm'n, Blank v. Dep't of Corr., 462 Mich. 103, 165, 302 Mich. App. 574, 591, 841 N.W.2d 135, 145 (2013) 611 N.W.2d 530, 560 (2000). “The nondelegation doctrine . . . prohibits the “The power to adopt rules and General Assembly from regulations is administrative in delegating its legislative nature, not legislative . . .” power to some other agency or person.” Woods v. Midwest Conveyor Co., 231 Kan. 763, 771, 648 P.2d People v. Lowrie, 761 P.2d 778, 781 (Colo. 1988) 234, 242 (1982), superceded by statute on other grounds . 530, 560 (2000). 4
Why Delegate Rulemaking “This is not to say that the Authority? General Assembly may not delegate rulemaking authority to an administrative agency.” People v. Lowrie, 761 P.2d 778, 781 (Colo. 1988) Pragmatism Flexibility It is “impracticable for the General Congress “may establish Assembly to fix rigid standards to guide primary standards, agency action . . . without destroying the devolving upon others the duty to carry out the flexibility necessary to effectuate obvious legislative goals in dealing with complex declared legislative policy; that is, as Chief economic and social problems.” Justice Marshall expressed it, ‘to fill up the details.’” Panama Ref. Co. v. Ryan, 293 U.S. 388, 426, 55 S. Ct. 241, 251, People v. Lowrie, 761 P.2d 778, 781 (Colo. 1988). 79 L. Ed. 446 (1935) 5
Complexity Expertise “It would have been impossible, in a single “The Legislature delegates rulemaking legislative session, to set forth all the authority to state agencies because they requirements of such a complex activity as usually have expertise in a particular area fiscal management.” for which they are charged with oversight.” Yelle v. Bishop, 55 Wash. 2d 286, 302-03, 347 P.2d 1081, 1091 (1959). Whiley v. Scott, 79 So. 3d 702, 711 (Fla. 2011). Lawful v. Unlawful Time Delegation “As the problems of modern economic life grow more and more complex, legislatures, both state and Federal, find themselves lacking both in time and technique necessary to permit them to prescribe all of the detailed rules essential for dealing with the often highly technical subjects of modern legislation.” 3 A.L.R.2d 188 6
Unlawful Delegation: Unlawful Delegation: Two Types Separation of Powers The principle of separation of • Separation of Powers powers is violated when a branch of government attempts to • Due Process exercise a core power or essential function of another branch. Core Functions Essential Nature “a department . . . may not exercise powers not so “Core functions or powers of the constitutionally granted, which from their essential various branches of government are nature, do not fall within its division of governmental functions, unless such powers are clearly nondelegable under the Utah properly incidental to the performance by it of its Constitution.” own appropriate functions.” Salt Lake City v. Ohms, 881 P.2d 844, 848 Hawaii Insurers Council v. Lingle, 120 Haw. 51, 70, 201 (Utah 1994). P.3d 564, 583 (2008). 7
What are core legislative Legislating functions? “Hence it is a cardinal principle of representative government, that the legislature cannot delegate the power to make laws to any other body or authority.” Appeal of Locke, 72 Pa. 491, 494 (1873). “The legislature cannot delegate its power to make a law; but it can make a law to State Legislature 1001 123 Abdication Street delegate a power to determine Pay to the Order of State Agency_______________________ some fact or state of things [Insert whatever you want here!!!]__________________ upon which the law makes, or State te Legis isla latu ture intends to make, its own action depend.” Appeal of Locke, 72 Pa. 491, 498 (1873). 8
Crimes and Crimes and Penalties Penalties Crimes and Crimes and Penalties Penalties “[T]he courts may not denounce and punish as crimes acts and omissions not made punishable by statute, for it is a legislative power to declare acts as crimes and to prescribe proper penalties.” State v. Gallion, 572 P.2d 683, 688 (Utah 1977). 9
Crimes and Appropriating Funds Penalties “Where the statute provides a punishment “ The core functions of for violating the regulations or orders of a the legislative branch commission, the power to create a crime is include . . . making not delegated to the commission.” appropriations.” People v. Soule, 238 Mich. 130, 139, Carmel Valley Fire Prot. Dist. v. State, 25 Cal. 213 N.W. 195, 197 (1927). 4th 287, 299, 20 P.3d 533, 539 (2001) Establishing Policy Taxation “[T]he essentials of the “The power to tax is ‘legislative function’ are the a legislative power, Policy determination of legislative and cannot be policy and its formulation and promulgation as a delegated to an defined and binding rule of administrative conduct.” Cochran v. Black, 240 Ark. 393, 397, 400 body.” Multnomah Cty. v. Luihn, 180 Or. 528, 540, S.W.2d 280, 283 (1966). 178 P.2d 159, 165 (1947). 10
The rules No Blank Checks! on rulemaking State Legislature 1001 123 Abdication Street Pay to the Order of State Agency_______________________ [Insert whatever you want here!!!]__________________ State te Legis isla latu ture Standards Standards • Strict • Strict • Moderate 11
Standards Strict • Strict “Clear or specific standards ” • Moderate “intelligible principles” • Permissive “rules of action or framework” Strict Moderate • Arizona Standards v. required • Montana expertise • New York • South Carolina Practical under the • Texas circumstances • Utah 12
Moderate Permissive • Alabama “Suitable standards” • Colorado • Hawaii • Idaho “Adequate safeguards” • Minnesota • New Jersey Unlawful Delegation: Permissive Due Process “PRIIA grants • California Amtrak, a • Iowa • Maryland self-interested entity, • Oregon power to regulate its • Washington competitors.” • Wisconsin Ass'n of Am. Railroads v. U.S. Dep't of Transp., 821 F.3d 19, 34 (D.C. Cir. 2016). 13
The department shall . . . in accordance Drafting with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, make rules establishing: (A) a project funding application process; • Is it a lawful delegation? (B) project funding requirements; • Have you provided adequate guidelines (C) project approval criteria; and for your jurisdiction? (D) standards for evaluating the effectiveness of funded projects in • Have you protected the constitutional reducing salinity in the power of your client? Colorado River. Utah Code 4-2-8.5 . . . the State Building Board The department is may make rules establishing authorized and directed . . . circumstances under which to make and enforce such bids may be modified when all rules as may in its judgment bids for a construction project and discretion be necessary exceed available funds as to carry out the purposes of certified by the director. this chapter. Utah Code 4-3-2 Utah Code 63A-5-103 14
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