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Nondelegation doctrine: Permissible delegations of state legislative power (2020)

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This page contains information about states with provisions in their constitutions or administrative procedure acts defining what powers state legislatures may delegate to other branches of government or local entities.

Delegate, in this context, means to entrust or hand over authority to another branch of government. Congress sometimes delegates questions requiring subject-matter expertise to agency administrators, often housed in the executive branch, in order to implement the law. While some scholars support delegation, others argue that legislative authority is vested in Congress alone and cannot be delegated to other branches—a principle known as the nondelegation doctrine.

States have a range of laws and regulations governing the delegation of legislative authority. Some states, for instance, have constitutional separation of powers provisions that divide power between branches of government. Others have specific provisions that describe the types of authority that state legislatures can delegate to other branches of government or to local entities.

State administrative procedure acts (APAs) govern procedures for state administrative agencies to propose and issue regulations, adjudicate disputes, and provide for judicial review of agency decisions. Many state APAs are modeled on the federal APA, which governs the administrative processes of federal executive branch agencies. Text of all 50 state APAs is available here.

This page features the following sections:

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Summary of findings

Ballotpedia's survey of state constitutions and APAs produced the following key takeaways (as of January 2020):

  • 42 states, 84%, had no constitutional or APA provision expressly permitting legislative delegations of authority to the executive branch, the judicial branch, or local governments.
  • Eight states, 16%, had constitutional provisions
  • The Arkansas Constitution allowed the state to delegate taxing power to local entities for limited reasons.
  • The Connecticut Constitution allowed the state government to delegate legislative authority to cities and allowed the state legislature to delegate regulatory authority to the executive branch.
  • The New York Constitution allowed the state legislature to delegate authority over practice and procedure to the state supreme court or chief administrator of the courts. It also allowed laws that delegate taxing power.
  • The North Carolina Constitution allowed the state legislature to delegate authority to the state supreme court to set rules of procedure and practice.
  • The Oklahoma Constitution allowed the state legislature to delegate to the state supreme court the authority to divide the state into districts and set the number of judges.
  • The Pennsylvania Constitution allowed the state legislature to empower panels or commissions to issue binding factual determinations.
  • No state had APA provisions

States with APA or constitutional provisions permitting legislative delegations of authority to other branches of government or to local entities

The table below includes each state in alphabetical order and indicates those with specific provisions in their constitutions or APAs allowing legislative delegations of authority.

  • Done means that the state constitution or APA contained a relevant definition
  • Defeatedd means that the state constitution or APA did not contain such a definition
State Constitutional provision specifying what the state legislature may delegate State APA provision specifying what the state legislature may delegate
Alabama DefeatedA DefeatedA
Alaska Done DefeatedA
Arizona DefeatedA DefeatedA
Arkansas Done DefeatedA
California DefeatedA DefeatedA
Colorado DefeatedA DefeatedA
Connecticut Done DefeatedA
Delaware DefeatedA DefeatedA
Florida DefeatedA DefeatedA
Georgia DefeatedA DefeatedA
Hawaii Done DefeatedA
Idaho DefeatedA DefeatedA
Illinois DefeatedA DefeatedA
Indiana DefeatedA DefeatedA
Iowa DefeatedA DefeatedA
Kansas DefeatedA DefeatedA
Kentucky DefeatedA DefeatedA
Louisiana DefeatedA DefeatedA
Maine DefeatedA DefeatedA
Maryland DefeatedA DefeatedA
Massachusetts DefeatedA DefeatedA
Michigan DefeatedA DefeatedA
Minnesota DefeatedA DefeatedA
Mississippi DefeatedA DefeatedA
Missouri DefeatedA DefeatedA
Montana DefeatedA DefeatedA
Nebraska DefeatedA DefeatedA
Nevada DefeatedA DefeatedA
New Hampshire DefeatedA DefeatedA
New Jersey DefeatedA DefeatedA
New Mexico DefeatedA DefeatedA
New York Done DefeatedA
North Carolina Done DefeatedA
North Dakota DefeatedA DefeatedA
Ohio DefeatedA DefeatedA
Oklahoma Done DefeatedA
Oregon DefeatedA DefeatedA
Pennsylvania Done DefeatedA
Rhode Island DefeatedA DefeatedA
South Carolina DefeatedA DefeatedA
South Dakota DefeatedA DefeatedA
Tennessee DefeatedA DefeatedA
Texas DefeatedA DefeatedA
Utah DefeatedA DefeatedA
Vermont DefeatedA DefeatedA
Virginia DefeatedA DefeatedA
Washington DefeatedA DefeatedA
West Virginia DefeatedA DefeatedA
Wisconsin DefeatedA DefeatedA
Wyoming DefeatedA DefeatedA

Text of state APA or constitutional provisions permitting legislative delegations of authority to other branches of government or to local entities

This section contains text from state constitutions, laws, or APAs defining what powers the state legislature may delegate to the executive branch, the judicial branch, or local governments.

Some sections display whole articles from a state constitution or APA, while others only show relevant segments.

Alaska

See also: Alaska Constitution and Alaska Administrative Procedure Act

Article 10 of the Alaska Constitution allows the state legislature to delegate taxing authority to local governments:

§ 2. Local Government Powers


All local government powers shall be vested in boroughs and cities. The State may delegate taxing powers to organized boroughs and cities only.[1]

Arkansas

See also: Arkansas Constitution and Arkansas Administrative Procedure Act

Article 2, Section 23 of the Arkansas Constitution allows the state legislature to delegate taxing authority to local governments:

§ 23. Eminent domain and taxation.


The State’s ancient right of eminent domain and of taxation, is herein fully and expressly conceded; and the General Assembly may delegate the taxing power, with the necessary restriction, to the State’s subordinate political and municipal corporations, to the extent of providing for their existence, maintenance and well being, but no further.[2]

Connecticut

See also: Connecticut Constitution and Connecticut Administrative Procedure Act

Article 10 of the Connecticut Constitution allows the state legislature to delegate authority to local entities to form governments:

SEC. 1. The general assembly shall by general law delegate such legislative authority as from time to time it deems appropriate to towns, cities and boroughs relative to the powers, organization, and form of government of such political subdivisions.[3]


Amendment Article 18 of the Connecticut Constitution allows the state legislature to delegate authority to the executive department to issue regulations:

The legislative department may delegate regulatory authority to the executive department; except that any administrative regulation of any agency of the executive department may be disapproved by the general assembly or a committee thereof in such manner as shall by law be prescribed.[3]

Hawaii

See also: Hawaii Constitution and Hawaii Administrative Procedure Act

Article VIII, Section 3 of the Hawaii Constitution allows the state legislature to delegate taxing authority to local governments:

Section 3. The taxing power shall be reserved to the State, except so much thereof as may be delegated by the legislature to the political subdivisions, and except that all functions, powers and duties relating to the taxation of real property shall be exercised exclusively by the counties, with the exception of the county of Kalawao.[4]

New York

See also: New York Constitution and New York Administrative Procedure Act

Article VI, Section 30 of the New York Constitution allows the state legislature to delegate authority to the judicial branch to regulate judicial practice and procedure:

The legislature shall have the same power to alter and regulate the jurisdiction and proceedings in law and in equity that it has heretofore exercised. The legislature may, on such terms as it shall provide and subject to subsequent modification, delegate, in whole or in part, to a court, including the appellate division of the supreme court, or to the chief administrator of the courts, any power possessed by the legislature to regulate practice and procedure in the courts. The chief administrator of the courts shall exercise any such power delegated to him or her with the advice and consent of the administrative board of the courts. Nothing herein contained shall prevent the adoption of regulations by individual courts consistent with the general practice and procedure as provided by statute or general rules. [5]


Article XVI, Section 1 of the New York Constitution includes a general provision allowing the state legislature to delegate taxing authority:

The power of taxation shall never be surrendered, suspended or

contracted away, except as to securities issued for public purposes pursuant to law. Any laws which delegate the taxing power shall specify the types of taxes which may be imposed thereunder and provide for their review.[6]

North Carolina

See also: North Carolina Constitution and North Carolina Administrative Procedure Act

Article IV, Section 13 of the North Carolina Constitution allows the state legislature to delegate authority to the judicial branch to regulate judicial practice and procedure:

Rules of procedure.

The Supreme Court shall have exclusive authority to make rules of procedure and practice for the Appellate Division. The General Assembly may make rules of procedure and practice for the Superior Court and District Court Divisions, and the General Assembly may delegate this authority to the Supreme Court. No rule of procedure or practice shall abridge substantive rights or abrogate or limit the right of trial by jury. If the General Assembly should delegate to the Supreme Court the rule-making power, the General Assembly may, nevertheless, alter, amend, or repeal any rule of procedure or practice adopted by the Supreme Court for the Superior Court or District Court Divisions.[7]

Oklahoma

See also: Oklahoma Constitution and Oklahoma Administrative Procedure Act

Article 7, Section 7 of the Oklahoma Constitution allows the state legislature to delegate authority to the judicial branch to designate judicial districts and the number of judges:

The Legislature may at any time delegate authority to the Supreme Court to designate by court rule the division of the State into districts and the number of judges.[8]

Pennsylvania

See also: Pennsylvania Constitution and Pennsylvania Administrative Procedure Act

Article III, Section 31 of the Pennsylvania Constitution allows the state legislature to delegate authority to statutory panels or commissions in order to adjudicate collective bargaining disputes and to local governments in order to lake legislative action to comply with collective bargaining settlements:

Notwithstanding the foregoing limitation or any other provision of the Constitution, the General Assembly may enact laws which provide that the findings of panels or commissions, selected and acting in accordance with law for the adjustment or settlement of grievances or disputes or for collective bargaining between policemen and firemen and their public employers shall be binding upon all parties and shall constitute a mandate to the head of the political subdivision which is the employer or to the appropriate officer of the Commonwealth if the Commonwealth is the employer, with respect to matters which can be remedied by administrative action, and to the lawmaking body of such political subdivision or of the Commonwealth, with respect to matters which require legislative action, to take the action necessary to carry out such findings.[9]

See also

Footnotes

  1. ↑ JUSTIA, "Alaska Constitution, Article 10 - Local Government," accessed January 24, 2020
  2. ↑ Arkansas Legislature, "Arkansas Constitution," accessed January 24, 2020
  3. ↑ 3.0 3.1 State of Connecticut, "Connecticut Constitution," accessed January 24, 2020
  4. ↑ Hawaii Legislative Reference Bureau, "Constitution of Hawaii," accessed January 24, 2020
  5. ↑ New York Department of State, "New York Constitution Art. VI, Section 30. Legislative power over jurisdiction and proceedings; delegation of power to regulate practice and procedure," accessed January 24, 2020
  6. ↑ New York Department of State, "New York Constitution Art. VI, Section 30. Legislative power over jurisdiction and proceedings; delegation of power to regulate practice and procedure," accessed January 24, 2020
  7. ↑ North Carolina Legislature, "North Carolina State Constitution," accessed January 24, 2020
  8. ↑ State of Oklahoma, "Oklahoma Constitution, Article 7, Section 7," accessed January 24, 2020
  9. ↑ Pennsylvania General Assembly, "The Constitution of Pennsylvania," accessed January 24, 2020
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