Survey finds 44 states do not prohibit delegation of legislative power to agencies

A Ballotpedia survey of all 50 state constitutions and administrative procedure acts (APAs) revealed that 44 states, 88%, had no prohibition against the delegation of legislative power to agencies as of January 2020.

The nondelegation doctrine refers to limits placed on transferring legislative authority to the executive branch or to administrative agencies. The doctrine is a constitutional principle key to understanding one of the main areas of debate about the nature and scope of the administrative state.

States have a range of limitations on the delegation of legislative authority. Most state constitutions divide power between branches of government and some restrict the types of rules administrative agencies can issue using delegated authority.

The Ballotpedia survey found that six state APAs, 12%, contained prohibitions against the delegation of legislative authority to agencies. State APAs contain procedures for state administrative agencies to propose and issue regulations, to adjudicate disputes, and provide for judicial review of agency decisions. Many state APAs are modeled on the federal APA, which governs the administrative processes of federal executive branch agencies.

Click here to learn more about the results of the survey.

Click here to learn more about the nondelegation doctrine.

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