Last year I wrote at length about a state legislative process that allows collective bargaining agreements (CBAs) with state employees to become law without legislators actually voting to approve the agreements. Under the “deemed approved” process, a CBA is presented to the legislature for consideration. If the legislature does not reject the CBA in thirty days, it becomes law.
I explained that the deemed approved process is inconsistent with the state constitution, which provides that a legal proposal, like a bill, only becomes “law” when a majority of the members of both houses of the legislature vote to approve the bill and the governor signs it. I also explained that the deemed approved process is an example of bad governance because it allows our elected representatives to avoid voting on the record and taking responsibility for one of the most important aspects of state government.
Naturally, I was quite pleased to see that a bill was introduced at the very beginning of the new legislative session that would have required members of the legislature to vote on CBAs. That is how our representative democracy is supposed to work. Unfortunately, the bill was rejected on a party-line vote. There is talk, however, that it may be reconsidered later in the session.
I hope the bill is reconsidered, and I hope it passes, because I think there may be a serious constitutional problem if it doesn’t pass. The problem is that the state constitution places limits on the legislature’s ability to delegate its lawmaking authority to another branch of government. This is known as the “nondelegation doctrine.”
Some law professors spend their lives studying the doctrine. The Connecticut Supreme Court provided this explanation of the doctrine in State v. Stoddard, 126 Conn. 623 (1940):
The Constitution of this state provides for the separation of the governmental functions into three basic departments, legislative, executive and judicial, and it is inherent in this separation, since the law-making function is vested exclusively in the legislative department, that the Legislature cannot delegate the law-making power to any other department or agency. In the establishment of three distinct departments of government the Constitution, by necessary implication, prescribes those limitations and imposes those duties which are essential to the independence of each and to the performance by each of the powers of which it is made the depositary. . . . Although our Constitution contains no specific limitations, relevant to the present inquiry, upon the exercise of legislative power “the limitations . . . are no less real, and perhaps more effective, than if phrased in specific terms.”
. . .
A Legislature, in creating a law complete in itself and designed to accomplish a particular purpose, may expressly authorize an administrative agency to fill up the details by prescribing rules and regulations for the operation and enforcement of the law. In order to render admissible such delegation of legislative power, however, it is necessary that the statute declare a legislative policy, establish primary standards for carrying it out, or lay down an intelligible principle to which the administrative officer or body must conform, with a proper regard for the protection of the public interests and with such degree of certainty as the nature of the case permits, and enjoin a procedure under which, by appeal or otherwise, both public interests and private rights shall have due consideration. . . . If the Legislature fails to prescribe with reasonable clarity the limits of the power delegated or if those limits are too broad, its attempt to delegate is a nullity. (Emphasis supplied.)
Given the nondelegation doctrine, the question is whether the State Employees Relations Act (SERA), the 1977 law that authorized collective bargaining in Connecticut, is a lawful or unlawful delegation of power to the executive branch to the extent that it provides for the deemed approval of CBAs. To my knowledge, no Connecticut court has addressed this question. I do not know how the Supreme Court would resolve the question if presented with it. But I do think it is a serious question. I also think it would be better for the legislature to render the constitutional question moot by adopting legislation that requires an affirmative vote on CBAs than to leave the issue to the courts.
I intend to cogitate and write more on this issue in the future. Meanwhile, I am interested in readers’ thoughts. Please comment!
UPDATE (1/11/17): Yesterday I spoke with WDRC’s Dan Lovallo about these issues.