Delegated legislation
In the United Kingdom, delegated legislation (also referred to as secondary legislation or subordinate legislation or subsidiary legislation) is law made by an executive authority under powers delegated from a legislature by enactment of primary legislation; the primary legislation grants the executive agency power to implement and administer the requirements of that primary legislation. It is law made by a person or body other than the legislature but with the legislature's authority.[1] The power to create delegated legislation is limited to making regulation that is incidental to administering the primary legislation. Otherwise it will be considered as invalid or ultra vires.[2]
Often, a legislature passes statutes that set out broad outlines and principles, and delegates authority to an executive branch official to issue delegated legislation that flesh out the details (substantive regulations) and provide procedures for implementing the substantive provisions of the statute and substantive regulations (procedural regulations). Delegated legislation can also be changed faster than primary legislation so legislatures can delegate issues that may need to be fine-tuned through experience.
The UK terminology is not used in the United States because it would violate the bedrock principle of separation of powers as embodied in the U.S. Constitution. In a 2013 majority opinion signed by Associate Justice Antonin Scalia, the U.S. Supreme Court explained:
| “ | The dissent overstates when it claims that agencies exercise “legislative power” and “judicial power” ... The former is vested exclusively in Congress ... the latter in the “one supreme Court” and “such inferior Courts as the Congress may from time to time ordain and establish” ... Agencies make rules ... and conduct adjudications ... and have done so since the beginning of the Republic. These activities take “legislative” and “judicial” forms, but they are exercises of—indeed, under our constitutional structure they must be exercises of—the “executive Power.”[3] | ” |
In the U.S., the corresponding terminology is as follows:
- the statute that delegates authority (referred to above as "primary legislation") is called an "authorizing statute" or "delegation of rule making authority"
- the resultant law promulgated by the executive branch agency (referred to above as "secondary legislation") is called a "regulation"—in the United States, "legislation" is used exclusively to refer to acts of a legislative branch, never the executive or judicial branch
- the body of law that governs the agency's exercise of rule making and adjudication powers is called "administrative law," primarily the Administrative Procedure Act.
See also
- Administrative law
- Delegated legislation in the United Kingdom
- Executive order (United States)
- Rulemaking
- Statutory Instrument (UK)
- Statutory Instrument
- United States administrative law
Notes
- ↑ "Delegated Legislation". lawteacher.net. Retrieved 18 September 2012.
- ↑ "see Shanahan v Scott [1957] ALR 171". Austlii.
- ↑ City of Arlington v. FCC, 569 U.S. __, __, n.4 (2013) (slip op. at 13) (emphasis in original).