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.

State constitutions typically grant two types of immunities to legislators.  One protects speech and debate.  The other prevents or limits arrest during the legislative session.

Speech and Debate Immunity

Legislative speech and debate immunity grew out of centuries of struggle between the English parliament and throne.  During the 16th and 17th centuries, some English monarchs sought to intimidate legislators–especially those not sympathetic to the Crown’s viewpoints–through legal action. The adoption of the English Bill of Rights in 1689 sharply limited this practice by granting  immunity to members against civil or criminal action stemming from the performance of their legislative duties.  It provided that “the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament.”

In America, the constitutions of 43 states provide legislators with a fundamental protection of free speech and debate.  This immunity protects legislators from punitive executive or judicial action.  The intent is to allow lawmakers to work independently and unimpeded by the threat of intervention from the other branches of government in the discharge of their legislative duties.
Court decisions interpreting the extent of protection afforded by legislative immunity vary.  The interpretations have centered on a definition of “legitimate legislative activity.”  Such activities extend beyond floor debate and include the act of voting and views expressed in committee deliberations.

Questions remain, however.  While legislators are protected from liability, are they also protected from having to testify about their legislative actions?  Are legislative documents protected from judicial inquiry?  These are just some of the questions that may not be fully resolved as states struggle to balance unencumbered legislative deliberations with more open government under “sunshine” laws and Freedom of Information Acts and new social networking capabilities.

Immunity from Arrest

The framers of the U.S. Constitution recognized the fundamental necessity of protecting members of Congress from arbitrary arrest. While U.S. Constitution Article I, section 6 placed some restrictions on the police or justice to arrest or detain legislators during a legislative session, its protections did not apply to situations involving “treason, felony or breach of the peace.”  Most state constitutions contain similar provisions.
Questions about arrest immunity often arise.  For example, when–and in what situations–does the provision apply?  Is protection from arrest removed only for “treason, felony or breach of the peace,” or is a broader interpretation of the offenses applied?

Oversight in General

During the past three decades, legislatures have enhanced their capacity to play a more active role in the policymaking process.  They have asserted their independence from the governor, assumed a greater responsibility in formulating policy, and more actively oversee the operations of the executive branch.

Legislative oversight takes many forms.  Most often, legislative standing committees are responsible for continuous review of the work of the state agencies in their subject areas.  Legislatures also have created special committees or staff agencies designed specifically to evaluate agency operation and performance.  In addition, legislatures may review (and sometimes, veto) the rules and regulations developed by executive agencies to implement law.

Legislative oversight is a fundamental check and balance.  As states have assumed greater responsibilities for government programs and services, the importance of legislative oversight has increased.  More active legislative involvement, however, may increase frictions with the executive branch.

Legislative Program or Performance Evaluation

The development of program evaluation capabilities was a key component in the evolution of the modern state legislature, and most program evaluation offices have been in operation for more than 25 years.

A performance audit or evaluation is a comprehensive examination of an organization, program or activity conducted by an independent evaluator to assess efficient use of resources or effectiveness.  Legislative program evaluation helps legislatures to ensure that the programs they establish and fund are operating efficiently, effectively, and economically.

Legislative Veto of Administrative Rules

An administrative rule is typically a regulation, standard or policy issued by an executive agency to implement statutory provisions administered by the agency.  In many states, the number of regulations promulgated by executive agencies exceeds the number of statutes enacted by the legislature.

Although state legislatures have delegated that authority to executive agencies, they have carefully protected their authority to review and, in most instances, approve administrative rules to ensure that they comply with statutory authority and legislative intent.  If the legislature determines that a rule does not comply with those two thresholds, it may be empowered by constitutional provision or statute to veto the rule.

Forty-one states have some type of authority to review administrative rules, although not all of them have the power to veto rules.  In the states that have veto authority, the action may be required through enactment of a statute (13 states) or passage of a resolution (15 states).  State courts have heard challenges to legislative veto of administrative rules in at least 11 states, with all but two ruling that the power—or the process being used—was unconstitutional.  Court decisions in Idaho and Missouri illustrate the differing perspectives.

In Mead v. Arnell, 791 P.2d 410 (Idaho 1990), the Idaho Supreme Court upheld the authority of the legislature to veto administrative rules through passage of a resolution that did not require the governor’s signature.  The court determined that only the legislature can make laws and that administrative rules have a lesser status than statutory law, thereby allowing a statute that authorized a veto through legislative resolution to stand.

In Missouri Coalition for the Environment v. Joint Committee on Administrative Rules, 948 S.W.2d 125 (Mo. 1997), the Missouri Supreme Court ruled unconstitutional a statute that suspended agency rules pending review by the Joint Committee on Administrative Rules.  The court determined that the legislature “may not unilaterally control execution of rulemaking authority after its delegation of rulemaking power,” requiring it to pass a bill for the governor’s signature if it chose to alter a rule.