McGeorge Adjunct Professor Chris Micheli

Under our state constitution’s separation of power provisions, the laws of the state are generally enacted by the legislative branch of government, administered by the executive branch of government, and interpreted by the judicial branch of government. With the executive branch being charged with both administering and enforcing the law, state agencies and departments tasked with administering the law need to engage in rulemaking activities that are quasi-legislative in nature.

In delegating authority to the executive branch of government, one question that arises is whether a legislature can be expected to adopt statutes that address every detail of public policy. In some instances they can, but in many other instances they cannot. As a result, it is expected that there is to be some delegation of legislative authority to the executive branch of either the federal or state levels of government. There is an issue of which powers can be delegated to the executive branch of government and to which of the agencies or departments, as well as to what extent that delegation can take without running afoul of constitutional limitations.

So, how broadly can the California Legislature delegate authority to state agencies and departments? Generally, when the Legislature delegates some of its authority, it will also articulate guidance in the use of that authority by that particular state agency. There are many state appellate court decisions in this area of state constitutional law. As a general rule, an unconstitutional delegation of authority occurs when the Legislature:

  1. Leaves the fundamental policy issues to others, or
  2. Fails to provide adequate direction for the implementation of the particular policy.

In the end, the fundamental issue that the courts look at is how much legislative authority can be delegated to agencies and departments in the executive branch. It appears, that the more that the authority is delegated, the more likely the delegation will be deemed unlawful.

You can find a full transcript of today’s post here.