The Nondelegation Doctrine in New York

It sure took some time, but New York’s latest financial crisis seems to have brought out the Machiavelli in Governor Paterson. Yesterday, after weeks of negotiating with the legislature over budget cuts, Paterson proposed a bill that would let the legislature “punt” the question to him. With the legislature’s carte blanche, Paterson’s staff and cabinet would unilaterally make cuts, effective upon his execution.

Of course, it’s never going to happen: if the legislature won’t make a decision with Paterson, why would they let him make the decision without them? But the bill sends a message — “if the legislature lacks the courage to make the necessary cuts, I’ll do it” — clearly designed portray Paterson as the exasperated but genuine public servant, just trying to get something done, and to hell with the cost.

Unfortunately, the cost may be the state constitution (kudos to Assemblymember Lancman for picking up on the constitutional issue — but might we tone down the Beckian rhetoric?).

One of the (few) ways in which modern constitutionalism preserves untarnished the Montesquieu/Locke “classical” model of separation of powers is to prevent the complete fusion of the legislative and executive powers: the legislature may not completely abdicate its authority to the executive. The legislature may partially delegate its authority to agencies under executive control, but only if the surrender of power comes with the guidance of an “intelligible principle,” thus preventing the executive from ever overstepping the scope of the delegation. See A.L.A. Schechter Poultry Corp. v. U.S., 295 U.S. 495 (1935).

The “nondelegation doctrine” — per Schechter — finds its textual hook in the Congress’ “vesting” clause. See U.S. Const., Art. I, § 1 (“All legislative powers herein granted shall be vested in a Congress of the United States…”). New York substantially duplicates that language, at Art. III, § 1. Our state constitution even adds another, more explicit ban on outright delegation, providing that “no law shall be enacted except by bill.” N.Y. Const., Art. III, § 13. Nondelegation concerns apply with more, not less force in New York.

We haven’t seen many nondelegation doctrine cases lately. In fact, the doctrine’s often thought of as dead. Modern agencies take more and more discretion from the legislature, and that’s probably a bad thing (a subject for another day). But we also don’t often see attempts to delegate as much power as Paterson is proposing.

Modern democracy necessitates muddying classical separation theory — but only to a certain extent. Still, the prohibition against the fusion of the executive and legislative powers is ancient indeed, and with good cause.* Paterson’s bill sends a compelling public relations message, but espouses a theory of legislation that ought not come to pass, and will not.


  1. And you could add that beside impeachment, the authority to pass – or rather, not to pass – budgets is probably the strongest weapon a legislature has access to when acting as a ‘check & balance’ on the executive.

    As far as martial law is concerned, I doubt Bruce Willis will move his troops into NYC any time soon, but civil wars have been fought over this sort of thing in the past, so it is pretty serious business. Sets a really bad precedent, anyway.

  2. That’s true. But the wars are generally fought when the governor demands the bill’s passage — so far, I think it’s just been a friendly, naive “wouldn’t it be nice?” (no, it would not).

    And I agree! There’s something particularly awful about trying to commandeer the budget process.

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