No Nondelegation in Washington State

The nondelegation doctrine prevents a legislature from delegating its power to make law. The structure of our government demands that law be made by legislators and not by the executive branch or private parties, even if the legislature wants to delegate its powers to them.

Or so the theory goes. The doctrine famously exists but is almost never enforced at the federal level. (Although some may argue that other doctrines, such as the major questions doctrine, have come to pick up some of the slack.) In the states, however, courts do use versions of the doctrine from time to time. While not frequent, there are many examples in recent years of state courts pushing back against state legislatures dolling out wide grants of lawmaking authority to executive officers and private actors. One attempt to apply this push back was just made in Washington State. On this occasion, however, the pushback failed.

Although it’s often glossed over, there actually are two versions of the nondelegation doctrine. One is based on the “vesting” clauses of the Constitution, and of equivalent language in state constitutions. Article I, Section 1 states “All legislative Powers herein granted shall be vested in a Congress of the United States . . .” Similarly, Washington State’s constitution guarantees that “The legislative authority of the state of Washington shall be vested in the legislature . . .” A provision that can add to this textual authority in many states—but isn’t in either the U.S. Constitution or Washington’s—is a separation of powers clause. For example, Minnesota’s says of the three branches of government “No person or persons belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others except in the instances expressly provided in this constitution.”

The other version of the nondelegation doctrine resides in due process clauses, whether the due process clauses in the Fifth or Fourteenth amendments, or in a state constitution. Here the idea is that delegation can be so arbitrary that it does not constitute a law made with proper procedures. An example is the 1912 case of Eubank v. City of Richmond, where a city council delegated to the residents of a neighborhood whether to change building lines on their street. The court said this needed to be done by the city council itself, not a group of interested private actors.

The recent case in Washington, Associated General Contractors of Washington v. State, did not address the due process version of the doctrine, but only that drawn from the “vested’ clause in the state constitution. It involved how wages were set for public works contracts. Washington used to set wages on those contracts by analyzing what was paid in the county in question in the past. The legislature changed the law to simply take the highest wage found in a local collective bargaining agreement. This, of course, would raise the cost of public contracts to whatever the most successful local union happened to have bargained for. Nonunion contractors who would be at a disadvantage in bidding for jobs (because they pay less than those wages) then sued to have the law declared unconstitutional.

The court did not break much new ground in the case, but applied the test from a case from 1972, Barry & Barry v. State Department of Motor Vehicles. That case had watered down the previous version of the state’s nondelegation doctrine to be much more like the federal version. It also had broad language you often find in cases giving the government more power, including a line that really gave the game away as to where its views lay: “the [nondelegation] doctrine in several respects impedes efficient government and conflicts with the public interest in administrative efficiency in a complex modern society.”

The court gave a two-part test for the doctrine, first that the legislature must provide “standards or guidelines” about what the delegated body is supposed to do (rather like the “intelligible principle” standard under federal law) and, second, that there must be “adequate procedural safeguards.”

Applying Barry & Barry, the Associated court ruled the test was satisfied. The standard or guideline was easy—whatever the local CBA says. And the procedural safeguard, reasoned the court, was that since CBAs are negotiated about all wages, not just those on public contracts, the unions and employers wouldn’t game the system and in effect be the lawmakers of the wages.

Barry & Barry concerned the delegation to a state official in setting the maximum fees employment agencies can charge. That’s a direct regulation of private conduct. Associated is about the spending of public money. You may think it’s an example of featherbedding and a waste of taxpayer dollars (like I do), but it’s not “making law” as a regulation of private contracting would be.

It could be for that reason that the court did not dig deeper than it did, and also how with Barry & Barry as a precedent the result followed. The challenging contractors did point to other precedent that was more helpful, but in the end the court interpreted those other cases to conform to the Barry & Barry standard.

The biggest flaw I see in the opinion is the conclusion that there is no delegation to the local unions and employers, via the CBA, to set wages and that the government is still doing the analysis. I’m sorry, but that just doesn’t follow. The law requires whatever two sets of private parties have agreed to to be the wage, regardless of what the government thinks and let alone what the legislature thinks. Relying on private parties—especially self-interested private parties like these—to set policy has all kinds of obvious problems. Perhaps if the court had examined the due process form of nondelegation this could have been more of an issue in the case, although it could also be the court’s mind was made up.

In any case, it’s important to remember that nondelegation can be a real thing in state court under state constitutions. Just not in Washington State anytime soon it seems.

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