Saturday, October 12, 2019

legislative power - non-delegation

Pennsylvania AFL-CIO v. Commonwealth – Cmwlth. Court – October 1, 2019 – precedential, reported

Article II, section 1 of the Pennsylvania Constitution states: “The legislative power of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and a House of Representatives.” PA. CONST. art. II, § 1. To avoid violating this provision, the General Assembly must make the “basic policy choices involved in [its] ‘legislative power’” when it authorizes some other entity to act. Protz II, 161 A.3d at 833.
This restriction services dual purposes: “it ensures that duly authorized and politically responsible officials make all of the necessary policy decisions, as is their mandate per the electorate,” and it “protect[s] against the arbitrary exercise of unnecessary and uncontrolled discretionary power.” Id.(citation omitted).
The restriction on delegation is not absolute, however, and the General Assembly may “assign the authority and discretion to execute or administer a law” to some other entity if it makes “the basic policy choices” and “include[s] ‘adequate standards which will guide and restrain the exercise of the delegated administrative functions.’” Id. at 833-34 (quoting Pennsylvanians Against Gambling Expansion Fund, Inc. v. Commonwealth, 877 A.2d 383, 418 (Pa. 2005) (PAGE)).
Accordingly, a “law must contain some intelligible principle to which the person or body authorized to [act] is directed to conform.” Id. at 834 (internal quotation marks and citation omitted) (alteration in the original). Further, a law must include “procedural mechanisms that serve to limit or prevent the arbitrary and capricious exercise of the delegated power.” Id.
The non-delegation doctrine does not prohibit the General Assembly from “adopting as its own a particular set of standards which already are in existence at the time of adoption.” Protz II, 161 A.3d at 838 (emphasis added).

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