"Statutory NonDelegation": Learning from Florida's Recent Experience in Administrative Procedure Reform

Abstract

In this Article, I assess one of the more notable reforms Florida made to its APA in 1996 with the intention of enhancing the accountability of agency rulemaking, and I discuss the lessons other state reformers can learn from Florida's experience. Part Il of this Article discusses rulemaking authority under the Federal AP A and the more restrictive approach many states take to ensure that agencies are accountable to the legislature in proposing rules. Some states, including Pennsylvania, have endorsed what I will term 11 statutory nondelegation 11: This is a judicially-adopted or APA-imposed clear statement requirement, suggesting that courts or administrative law judges (AIJs) review rules independently to ensure that they are based in apparent and specific statutory authority, rather than promulgated under implied powers from general grants of authority. Similar to the nondelegation doctrine, which exists in many states as a constitutional restraint on legislative delegations of rulemaking authority to agencies absent specific statutory authority and standards, statutory nondelegation is intended to ensure that agencies are accountable to the will of the legislature. States endorse statutory nondelegation with differing degrees of strength: While Pennsylvania judicially endorses a modest form of statutory nondelegation, Florida's 1996 APA reforms exemplify a radical and strong version, similar to what the United States Congress considered more than twenty years ago in the failed Bumpers Amendment to the Federal APA. In Part III of this article, I discuss some of the problems with efforts to enhance accountability by requiring statutory nondelegation in state APAs, using the recent Florida reform and its implementation as an example. Part IV discusses Florida's 1999 APA amendments, passed primarily as a reaction to legislative dissatisfaction with judicial interpretation of Florida's 1996 APA amendments. In Part V, I generalize from Florida's experience to suggest some lessons for Pennsylvania and other state reformers.