Non-delegation doctrine is a principle under the U.S. Constitution and state constitutions that limits or even prohibits delegation by one branch of government to another.
California
The California non-delegation doctrine is based on the separation-of-powers provision of the California Constitution, art. III, § 3. “The separation of powers doctrine limits the authority of one of the three branches of government to arrogate to itself the core functions of another branch.” Carmel Valley Fire Prot. Dist. v. State (2001) 25 Cal.4th 287, 297. But this doctrine “recognizes that the three branches of government are interdependent, and it permits actions of one branch that may ‘significantly affect those of another branch.’” Id. at p. 298.
The purpose is to ensure that “the legislative body must itself effectively resolve the truly fundamental [policy] issues.” Kugler v. Yocum (1968) 69 Cal.2d 371, 376. The Legislature “properly may delegate some quasi-legislative or rulemaking authority,” and “[f]or the most part, delegation of quasi-legislative authority ... is not considered an unconstitutional abdication of legislative power.” Gerawan Farming, Inc. v. Agric. Labor Relations Bd. (2017) 3 Cal.5th 1118, 1146.
California courts have broadly held that “delegation by legislative bodies is essential to the basic ability of government to function.” Golightly v. Molina (2014) 229 Cal.App.4th 1501, 1515. See also Salmon Trollers Mktg. Assn. v. Fullerton (1981) 124 Cal.App.3d 291, 300. Delegations of quasi-legislative authority are common, and “courts are understandably reluctant to interfere with such delegations.” Id.
As held by the California court in the Gerawan Farming decision, an unconstitutional delegation occurs only when a legislative body (1) delegates the resolution of the fundamental policy issue to others, (2) fails to establish adequate direction for the implementation of that policy, or (3) fails to include safeguards adequate to prevent abuse. 3 Cal.5th at pp. 1146, 1150-1151. Courts apply these criteria flexibly to a statute. See Kugler v. Yocum, 69 Cal.2d at p. 381 (“[t]he requirement for ‘standards’ is but one method for the effective implementation of the legislative policy decision; the requirement possesses no sacrosanct quality in itself so long as its purpose may otherwise be assured”); Sims v. Kernan (2018) 30 Cal.App.5th 105, 114 (inferring from the statute's policy the required “standards”).
Kentucky
The precedents in Kentucky on this issue include:
- Commonwealth ex rel. Beshear v. Bevin, 575 S.W.3d 673, 684 (Ky. 2019) ("In sum, on the facts before us, neither KRS 12.028 nor EO 2017-364 constitutes an unconstitutional delegation of legislative power. Nor did the Governor's reorganization of the Education Professional Standards Board, besides the Governor's restructuring of its appeal process, constitute an unconstitutional infringement on the judiciary's power because the temporary reorganization of this board does not impute the judicial power in any way.")
- Florence Speedway v. N. Ky. Indep. Health Dist., 2020 Ky. Cir. LEXIS 5, *25-26:
| “ | Commonwealth ex rel. Cameron insists that this violates the double-barreled protections of separation of powers and the non-delegation doctrine under §§ 27, 28 and 29 of the Kentucky Constitution, as well as § 15, which states: "No power to suspend laws shall be exercised unless by the General Assembly or its authority."
The Kentucky Supreme Court, in analogizing federal precedent relating to limited delegation to administrative agencies, declared that "Kentucky holds to a higher standard. ... [And] is more "restrictive of powers granted" than the federal Constitution. Board of Trustees of the Judicial Form Ret. Sys. v. Attorney General, 132 S.W.3d 770, 782 (Ky. 2003). It further held that, in no event can there be any delegation without, at a minimum, the "standards controlling the exercise of administrative discretion." Id. Because "Kentucky is a strict adherent to the separation of powers doctrine," Kentucky law mandates that "the legislature must lay down policies and establish standards" for any limited delegation to be constitutional. Id. See, for example, Miller v. Covington Development Authority, 539 S.W.2d 1 (Ky. 1976) (holding statute delegating broad powers to preserve historic or economic areas to be unconstitutional for not including detailed legislative criteria of what that entailed); and, Fawbush v. Bond 613 S.W.2d 414, 415 (Ky. 1981) (finding KRS 67.045 unconstitutional because it delegated responsibilities to district courts to evaluate and establish new boundaries from proposed redistricting plans on grounds that the statute failed to provide the criteria for such a review); and, Legislative Research Commission v. Brown, 664 S.W.2d 907, 915 (Ky. 1984) (declaring a statute unconstitutional for delegating authority to the Legislative Research Commission because the delegation lacked standards to control the exercise of administrative discretion). |
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- TECO Mechanical Contractor, Inc. v. Commonwealth, 366 S.W.3d 386, 397-99 (Ky. 2012):
| “ | The nondelegation doctrine recognizes that the Constitution vests the powers of government in three separate branches and, under the doctrine of separation of powers, each branch must exercise its own power rather than delegating it to another branch. Board of Trustees of Judicial Form Retirement System v. Attorney General of Commonwealth, 132 S.W.3d 770, 781 (Ky. 2003). ...
The General Assembly may validly vest legislative or judicial authority in an administrative agency if the law delegating that authority provides "safeguards, procedural and otherwise, which prevent an abuse of discretion by the agency." Kentucky Commission on Human Rights v. Fraser, 625 S.W.2d 852, 854 (Ky. 1981) (citing Butler v. United Cerebral Palsy of Northern Ky., Inc., 352 S.W.2d 203, 208 (Ky. 1961)). Factors to consider in determining whether the law in question provides sufficient safeguards include the experience of the agency to which the authority is delegated, the subject matter of the law, and the availability of judicial review. Butler, 352 S.W.2d at 208. With regard to delegations of legislative authority, we also consider whether the law prescribes sufficient standards to prevent the agency from exercising unfettered discretion. Holsclaw [v. Stephens, 507 S.W.2d 462, 471 (Ky. 1973)]. |
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- Brewer v. Commonwealth, 478 S.W.3d 363, 375 (Ky. 2015).