New York Nondelegation

Anthony Sanders · November 19, 2022

The New York Court of Appeals (the highest state court in New York), just added to the many recent state court opinions applying some version of the nondelegation doctrine. This time the subject wasn’t terribly high stakes—just what pay raises certain public officials should receive. But the court was extremely divided and the various opinions make for contemplation about similar controversies in other jurisdictions, both at the state and federal level.

As the lead opinion recounts in Delgado v. State,in 2018 the New York Legislature created a “Committee on Legislative and Executive Compensation” which reviews the pay levels of legislators and certain statewide elected officials and officers. (And, a couple years before it had created a similar committee that reviewed, among other things, judicial salaries. Thus, this case would affect both bodies.) The Committee must report what it finds and recommends about salaries and whether they should be adjusted to the Legislature and Governor and then its recommendations, i.e., pay raises or non-raises, go into effect unless the Legislature passes a contrary law. The Committee made certain recommendations and after the Legislature didn’t pass contrary legislation the raises went forward. A group of taxpayers and a legislator then challenged the underlying legislation as “unconstitutionally delegated legislative authority.”

Like the U.S. Constitution, the New York Constitution states that the “legislative power” is “vested” in its legislature. And, like the U.S. Supreme Court, the courts of New York have said that although this means basically that the Legislature cannot pass off its lawmaking powers to another body, it in fact can delegate a good amount of those powers. Further complicating matters in this case, the NY Constitution also states that the Legislature may “assign by law new powers and functions to . . . commissions” and that legislators should receive for “services a like annual salary, to be fixed by law.” Similar “fixed by law” language also pertains to other offices.

So are pay raises set by the Commission “fixed by law”? There was not a lot of agreement.

Only a plurality of the court signed onto the lead opinion. It emphasized that the issues under the Commission’s preview were limited and didn’t “revise general statutes governing a substantive body of law.” And in responding to arguments that the system took power our of the Governor’s hands, the court noted that the (then) Governor signed the law creating the Commission in the first place. It did not address, however, that this would be irrelevant had the Governor vetoed the law and the Legislature overrode it. For help, the plurality also turned to federal court interpretation of the U.S. Constitution’s Article I, Section 6, which states that “[t]he Senators and Representatives shall receive a Compensation for their Services to be ascertained by law.” Perhaps highlighting the weakness of the plurality’s argument, though, was that the federal authority on this language from the U.S. Constitution was a district court case from the 1970’s that was affirmed, but without opinion, by the Supreme Court.

The concurrence by Judge Wilson thought the Commission’s structure was constitutional as well, but “just barely.” He was very concerned that the Governor was cut out of the process and had little direct or indirect influence on the Commission. Interestingly, he said that in an interesting twist of the usual worries over the delegation of power, here the concern was also that the executive had its power delegated:

Here, the Enabling Act shifted power from the executive (as well as the legislature) into the Committee. Furthermore, that transfer of authority altered the balance of power between the legislative and executive branches, creating a situation where the Governor might be completely divested of legal authority to stop a lopsided appropriation to be paid directly to the legislators themselves.

It was only because Judge Wilson identified a high presumption of constitutionality for the legislation, and the possibility of judicial review of the Committee’s decision, that he concluded it (barely) passed muster.

The Judge also used as a metaphor an apparently popular game from the 1960’s called Tip-It. (“The wackiest balancing game ever.”) Perhaps some of our older blog readers will enjoy that passage (it was lost on me).

As for the dissent, this from the introduction sums it up: “The law at issue represents the legislature’s attempt to unburden itself of its unique constitutional power to pass and repeal laws and instead vest that power in a group of unelected individuals, thereby avoiding the important safeguards of the
constitutionally mandated lawmaking process.” It would have concluded that the legislation was unconstitutional under both the nondelegation doctrine and the “fixed by law” provisions of the New York Constitution.

The New York Constitution is unusual among U.S. states in that it has been substantially revised from time-to-time, but a “new” constitution hasn’t been adopted since not long after the Founding. Instead conventions have proposed substantial amendments all at once. Between the opinions in Delgado there’s a lot you can learn about this history, in addition to separation of powers in the Empire State.

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.