Chapter § 19.4
| Jurisdiction | Oregon |
As a general rule, state legislatures possess what is known as "plenary" authority. That is, they have the authority to enact laws on any subject, as long as that authority has not otherwise been limited by federal law or the state constitution. See, e.g., Kellas v. Department of Corrections, 341 Or 471, 478, 145 P3d 139 (2006) ("The lawmaking authority of Oregon's legislature under the Oregon Constitution is plenary, subject only to limits that arise either from the Oregon Constitution or from a source of supreme federal law."). This plenary authority is often referred to as the "police power." See, e.g., Christian v. La Forge, 194 Or 450, 460-61, 242 P2d 797 (1952) (referring to the "inherent police power" of the state legislature). In more recent cases, though, the Oregon courts tend to shy away from using the term police power in reference to the legislature's authority, as it amounts to no more than a label placed on the legislature's "general plenary power to legislate." State v. Hirsch, 338 Or 622, 638-39, 114 P3d 1104 (2005), overruled in part by State v. Christian, 354 Or 22, 307 P3d 429 (2013).
Many of the provisions of the state constitution's bill of rights, covered in earlier chapters of this book, impose substantive limits on the legislature's authority, by prohibiting the enactment of certain kinds of laws. For example, Article I, section 3, of the Oregon Constitution provides that "[n]o law shall in any case whatever control the free exercise, and enjoyment of religeous [sic] opinions, or interfere with the rights of conscience." See generally chapter 3 (free speech).
Other provisions of the constitution impose limitations not on the substance of legislation but on the processes by which it may be enacted. A number of those limitations may be found in Article IV and reflect a common nineteenth-century concern with legislative corruption. See generally G. Alan Tarr, Understanding State Constitutions 118-21 (1998) (describing the history of constitutional restrictions on state legislatures).
§ 19.4-1 Article I, Section 21: No Delegation of Legislative Authority
Article I, section 21, of the Oregon Constitution provides in part that no law shall be passed "the taking effect of which shall be made to depend upon any authority, except as provided in this Constitution." In general, that provision has been interpreted to forbid the legislature from "delegating" its legislative powers. What constitutes such forbidden "delegation" is an issue that defies enumeration of a simple rule or definition.
On the one hand, the courts have held that the legislature may not "confer upon any person, officer, agency or tribunal the power to determine what the law shall be." Van Winkle v. Fred Meyer, Inc., 151 Or 455, 462, 49 P2d 1140 (1935). This means that, for example, the legislature may not enact a law providing that private marketing agreements later entered into will become law upon approval by the Governor. Van Winkle, 151 Or at 463. See also City of Damascus v. Brown, 266 Or App 416, 426, 337 P3d 1019 (2014) (a law that permits private landowners to determine city boundaries is an unconstitutional delegation of legislative authority). Likewise, it means that the legislature may not enact a law requiring an agency of the executive branch to adopt statutes or regulations of the federal government or of another state that may "in the future" be adopted by those other authorities. Seale v. McKennon, 215 Or 562, 572, 336 P2d 340 (1959) ("Under the decisions of this and numerous other courts, such a delegation is unconstitutional."). See State v. Charlesworth, 151 Or App 100, 106-07, 951 P2d 153 (1997), rev den, 327 Or 82 (1998) (a state law that purported to incorporate changes to federal law, "as Congress makes those changes," would violate Article I, section 21). And it means that the legislature may not authorize an agency of the executive branch to establish minimum prices for services when a specified percentage of the providers of those services agree. LaForge v. Ellis, 175 Or 545, 552-53, 154 P2d 844 (1945).
On the other hand, the courts have concluded that Article I, section 21, does not forbid the legislature from incorporating "existing" statutes or regulations of the federal government or of another state. Meyer v. Lord, 37 Or App 59, 65-66, 586 P2d 367 (1978) ("The legislature or an administrative agency may adopt a particular edition of a set of standards or a codification so long as future modifications or alterations by the agency or organization responsible for the standards are not automatically included.").
The courts have also held that Article I, section 21, does not preclude the legislature from specifying that a law becomes "operative" upon the occurrence of a contingency or future event external to the law itself. See, e.g., Hazell v. Brown, 352 Or 455, 458, 287 P3d 1079 (2012). In Hazell, 352 Or at 458, for example, the court considered the constitutionality of a statute imposing limits on election campaign contributions and expenditures. At the time, such limits were unconstitutional under Vannatta, 324 Or at 524. But the statute provided that it "shall nevertheless be codified and shall become effective at the time that the Oregon Constitution is found to allow, or is amended to allow, such limitations." Hazell, 352 Or at 458. The Secretary of State took the position that the law violated Article I, section 21, because its effectiveness was subject to a contingency external to the law itself—either a constitutional amendment or a subsequent decision to overrule Vannatta. Hazell, 352 Or at 458-59. The court rejected that argument, concluding that Article I...
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