On Thursday, The Regulatory Review published "The Nondelegation Doctrine Is Alive and Well in the States," an essay by Free State Foundation President Randolph May.
In this follow-up to his September 25 piece in the Yale Journal on Regulation, "Justice Ginsburg's Replacement Won't Decimate the Administrative State," Mr. May notes that, although the U.S. Supreme Court has not invoked the nondelegation doctrine since 1935, state supreme courts continue to invalidate laws that, through the impermissible delegation of legislative authority, violate separation of powers principles set forth in their own constitutions.
Midwest Institute of Health v. Governor is one such recent example. In that case, decided earlier this month, the Michigan Supreme Court found a law relied upon by Governor Gretchen Whitmer to declare a state of emergency and issue "lockdown" orders during the COVID-19 pandemic to be "an unlawful delegation of legislative powers to the executive branch in violation of the Michigan Constitution."
Citing the U.S. Supreme Court's decision in Gundy v. United States for the proposition that "the constitutional question is whether [the legislature] has supplied an intelligible principle to guide the delegee's use of discretion," the Michigan supreme court concluded that the terms "reasonable" and "necessary" found in the Emergency Powers of the Governor Act of 1945 were mere "illusory 'non-standard' standards," insufficient to "serve[] in any realistic way to transform an otherwise impermissible delegation of legislative power into a permissible delegation of executive power."
Highlighting the existence of similar supreme court decisions in other states, Mr. May expresses hope that they will inspire the U.S. Supreme Court to revitalize the nondelegation doctrine at the federal level, which he concludes "is central to preserving the U.S. Constitution's separation of powers."
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