Delegation of Legislative Power

The Connecticut Constitution provides the separation of governmental functions into three basic departments--legislative, executive, and judicial (see Articles two through five of the Connecticut Constitution). The law making function is vested exclusively in the legislative branch, and our courts have held that the legislature cannot delegate the law-making power to any other department or agency. The leading Connecticut case appears to be State v. Stoddard, 126 Conn. 629 (1940) in which the court enunciated the principles by which most delegation challenges are decided.

A Legislature, in creating a law complete in itself and designed to accomplish a particular purpose, may expressly authorize an administrative agency to fill up the details by prescribing rules and regulations for the operation and enforcement of the law. In order to render admissible such delegation of legislative power, however, it is necessary that the statute declare a legislative policy, establish primary standards for carrying it out, or lay down an intelligible principle to which the administrative officer or body must conform, with a proper regard for the protection of the public interests and with such degree of certainty as the nature of the case permits, and enjoin a procedure under which, by appeal or otherwise, both public interests and private rights shall have due consideration. . . If the Legislature fails to prescribe with reasonable clarity the limits of the power delegated or if those limits are too broad, its attempt to delegate is a nullity (at page 628).

This principle has been adhered to in subsequent court decisions. (See State v. White, 204 Conn. 410; New Milford U.S. C.A. Services of Connecticut, Inc., 174 Conn. 146; Keating v. Patterson, 132 Conn. 210; Len-Lew Realty Co. v. Falsey, 141 Conn. 524; Roan v. Connecticut Indus. Bldg. Commission, 150 Conn. 333; St. John's Roman Catholic Church Corp. v. Town of Darien, 149 Conn. 712; West v. Egan, 18 Conn. Sup. 447; Santoro v. Rockwell, 14 Conn. Sup. 379.

Unfortunately, there is not a large body of Connecticut common law on this subject. Thus, our courts have not had the opportunity to deal with the numerous types of specific issues that can arise in delegation controversies. Following is a general description of the common law that has evolved in the other states and on the federal level concerning this issue. Please let us know if you would like more precise or detailed information or whether you would like us to address a more specific situation.

The doctrine of separation of powers of government into executive, legislative, and judicial, each to be exercised by a separate department, operates in a broad manner to confine to each department its own functions, so that neither may impose upon the other functions that are not proper to it and neither may usurp the powers of the other. A further aspect of this doctrine is that the proper functions of each department must be performed by that department and its powers cannot be exercised by others. Thus, one branch may not delegate its unique function to another branch, 16 AmJur 2d, Constitutional Law, § 332.

This doctrine applies only to the powers that, because of their nature, are assigned by the constitution to one of the branches exclusively. But courts recognize that executive, legislative, and judicial powers often blend and overlap and many duties or functions cannot be exclusively placed under any one branch. The modern view of separation of powers is to a large extent pragmatic, flexible, and functional and it recognizes that there may be a certain blending or mixture of these powers of government (Sylvester v. Tindall, 154 Fla. 663; 16 AmJur 2d, Constitutional Law, § 299).

The executive cannot encroach on the functions of the legislature in any manner such that his activity is tantamount to a repeal, enactment, variance, enlargement or suspension of legislation (16 AmJur 2d, Constitutional Law, § 305). The legislative power generally refers to the power to make, alter, and repeal laws. The essential element of it is to determine policy and transform it into binding rules of conduct Yakus v. United States, 64 S.Ct 660).

As a general rule, the legislature cannot delegate the power to make laws to any other authority or body because to do so would violate constitutional principles of separation of powers. (State v. Stoddard, 126 Conn. 623; H. Duys and Co. v. Tone, 125 Conn. 300; 16 AmJur 2d, Constitutional Law, § 335). The legislative may not in any degree abdicate its legislative power; any attempt to do so, although valid in form, is unconstitutional and void.

The constitution prohibits a legislature from delegating powers that are strictly, or inherently and exclusively legislative. It is the nature of the power that determines the validity of its delegation. Purely legislative power has been described as the authority to make a complete law. Thus, the legislature may not delegate its power to enact, suspend, or repeal laws. Nor may it delegate such essential elements of its lawmaking power as its power to declare principles and standards, or general public policy (Lee v. Delmont, 228 Minn. 101: Knight and Wall Co. v. Bryant, 178 So 2d 5, (1965); Nahlen v. Woods, 255 Ark. 974; 16 Am Jur 2D; Constitutional Law, § 337.

The general rule barring delegation of legislative powers is subject to several recognized limitations or exceptions. Thus, the rule does not bar legislatures from delegating powers that are not strictly legislative in nature. They may delegate nonlegislative powers that they could exercise themselves but which they cannot conveniently or expeditiously do.

Courts have approved the delegation of power where the legislature has laid down a complete and definite declaration of policy and established objective standards or guidelines (United States v. Rock Royal Co-operative, Inc., 307 U.S. 533, 59 S.Ct. 993, cert. den. 60 S.Ct. 66; 16 AmJur 2d, Constitutional Law, § 339). Mere matters of details within the policy and legal principles and standards established by the legislature are essentially ministerial rather than legislative; the working out in detail of the policy indicated by the legislature may be left to the discretion of others.

There is no absolute and universal formula for determining in all cases the powers that must be exercised by the legislature and those that may be delegated. The line between those essentially legislative functions that may not be delegated and those that may be is difficult to define or discern.

The preliminary ascertainment of facts as a basis for the enactment of legislation is not itself a legislative function, but is simply ancillary to legislation (Parker v. Riley, 18 Cal. 2d 83). Thus, the duty of gathering information and making recommendations is the kind of subsidiary activity that the legislature may perform through its own members, or which it may delegate to others to perform (16 AmJur 2d, Constitutional Law, § 340).