Local Legislatures and Delegation

Abstract

The law governing local legislatures’ delegations to local executives is a mess. Nondelegation doctrine, as applied to the state legislatures’ delegations, has at least a coherent (if empirically dubious) formal logic in classic ideas about separation of powers. When applied to local governments, however, the logic underlying this doctrine disintegrates. In the context of state legislatures’ deligations, the doctrine rests on the notion that the state constitution intended the state legislature, as the most democratically accountable representative of the state people, to take direct and inalienable responsibility for major policy decisions, leaving only the “details” of “implementation” to be decided by executive officials.

This reasoning is incoherent in the local government context.Many of local governments’ most important legislative powers are derived from statutory delegations enacted by the state legislature, refuting any prohibition on that body’s delegating “legislative powers.” Further, that delegated power is carried out by unicameral local legislatures exercising a mix of both legislative and executive powers in defiance of state constitutional rules requiring bicameral legislatures to turn over implementation to executive officials.

Ignoring these realities, state courts routinely enforce some version of the nondelegation doctrine against local governments without differentiating between local and state delegations, sometimes even senselessly relying on separation-of-powers logic that makes little sense at the local level. This Article attempts to bring some coherence to the law governing local delegations by recognizing that limits on local delegation have nothing to do with state constitutional separation of powers. Instead, those limits rest on statutory presumptions that ought to be crafted in light of the peculiarities of local legislatures. Unlike some state legislatures or Congress, local governments regularly lack the partisan competition necessary to support jurisdiction-wide policy platforms. Local legislators, therefore, tend to adopt parochial policies that ignore jurisdiction-wide costs and benefits, including mutual deference to each legislator’s exclusion of locally costly infrastructure or land uses from their district and excessive deference to incumbent entitlement holders like vendors, contractors, public employees, and neighborhood associations.

This Article argues that state courts should recognize that, in contrast to local legislators, mayors, county executives, and city managers have broader name recognition and greater capacity to mobilize the voting public on behalf of jurisdiction-wide considerations. Nondelegation canons that impede local legislative bodies from delegating broad policy-making power to such unitary executives, therefore, undermine rather than strengthen democratic accountability. Rather than try to clone state-level nondelegation doctrine at the local level, local nondelegation canons ought to strengthen the hand of these jurisdiction-wide executives, not undermine them with gratuitous impediments like local nondelegation doctrines.

Keywords: Administrative Law, Local Administrative Law, Mayors, Bloomberg, City Council

JEL Classification: H79, H77, H71