This is the Catoid Daily podcast for Wednesday, December 18th, 2024.

I'm Caleb Brown.

The Supreme Court recently said some policy questions are so important that they cannot be left purely to the executive.

How pervasive is that thinking at the state level?

Do state lawmakers engage in the kinds of large

and often unconstitutional delegations of authority to relatively unaccountable state agencies?

Adi Dynar with the Pacific Legal Foundation offers his thoughts.

So we had this case at the Supreme Court a couple years ago, West Virginia v. EPA.

And in it, Chief Justice Robert, so I believe wrote the majority opinion in that case, said essentially that there are certain questions that rise to a level of policy importance that must be addressed by Congress.

And below some threshold, it's fine if administrative agencies effectively are making calls about

how to attack certain issues.

Does that impose anything on states?

Like, are states, are they bound by any of the decisions made in that case?

So I think the West Virginia case is a good place to start, but that case itself doesn't have any effect or impact on how the states view what is or isn't a major question.

The theoretical foundation or the jurisprudential foundation comes actually from the state constitutions.

The many state constitutions have robust and express separations of powers clauses.

Arizona is just one of them, Kansas, Illinois, you name it.

There are 20 plus states that have expressed separation of powers clauses in the state constitution.

And that's really the place where the state level major questions doctrine or non-delegation

doctrine tests at the state level come from.

Give me an example of where a state legislature has effectively delegated away to some agency a decision,

a right over a decision, that they just clearly simply should not have delegated that away.

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