NONDELEGATION IN PENNSYLVANIA.

• Author: Wecht, David N.

INTRODUCTION

The Supreme Court of the United States has struck down acts of Congress on nondelegation grounds only twice in that Court's entire history. (1) By contrast, the Supreme Court of Pennsylvania has invalidated two unconstitutional delegations in the last six years alone. (2) Given that successful nondelegation claims seem to be rare in the long history of the federal appellate courts, (3) we explore the two recent Pennsylvania decisions in greater detail below and consider whether our own state's comparatively lively nondelegation docket is attributable to substantive doctrinal differences or simply to mere coincidence. We conclude it is the latter.

1. DELEGATION OF LEGISLATIVE AUTHORITY TO AN UNELECTED "SCHOOL REFORM COMMISSION"

   The first of these recent nondelegation cases, West Philadelphia Achievement Charter Elementary School v. School District of Philadelphia, (4) involved a challenge to provisions of Pennsylvania's Public School Code (5) that govern financially distressed school districts. This now partially invalidated "Distress Law" worked as follows. If a school district failed to meet certain state academic standards or budgetary requirements, the Commonwealth's Secretary of Education could declare the district to be distressed. (6) Upon such a declaration, the powers of the Philadelphia School Board would be suspended and a five-member School Reform Commission would be created to oversee the district. (7) The Commission would include some members appointed by the Governor and some members appointed by the Mayor of Philadelphia. (8) By law, the newly formed Commission would be given all powers previously possessed by the school board as well as broad statutory authority to suspend almost any requirement of the Public School Code or any regulation of the State Board of Education. (9)

   The Commonwealth's Secretary of Education triggered the Distress Law in 2001 when he declared the Philadelphia School District to be financially distressed. (10) Given the Secretary's declaration, the Philadelphia School Board's powers were suspended and a five-member Commission was appointed to oversee the District. (11) The unelected Commission remained in control of the Philadelphia School District for more than fifteen years but failed to restore the District to solvency. (12)

   In 2011, when one of Philadelphia's charter schools--the West Philadelphia Achievement Charter Elementary School--applied to the District for renewal of its charter, the Commission (qua School Board) tried to impose new conditions on the school's charter. (13) For example, the Commission sought to cap West Philadelphia's enrollment at no more than 400 students. (14) Had the School Board still been in charge of the District, this would not have been possible. The School Code allows for the placement of "reasonable conditions" on a school's charter only when the school is in "corrective action status" following a failure to meet "adequate yearly progress for at least four consecutive years." (15) But West Philadelphia was not in corrective action status. (16) The Commission therefore sought to suspend the corrective-action-status provision, thus allowing it to impose new conditions on any school, even those that had met all yearly progress standards. (17)

   The Supreme Court of Pennsylvania ultimately held that the Commission's broad suspension powers violated the nondelegation doctrine. (18) The court explained that Article II, Section 1 of the Pennsylvania Constitution states that "[t]he legislative power of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and a House of Representatives." (19) The nondelegation doctrine, which has been described as a "natural corollary" to that vesting clause, (20) prevents the General Assembly from delegating "to any other branch of government or to any other body or authority" the power to make law. (21) This prohibition has its roots in separation-of-powers principles and was championed by many of the political theorists who influenced the framers of the United States Constitution as well as the constitutions of the individual states. (22)

   Citing many of the same standards that the United States Supreme Court applies in nondelegation cases, the Supreme Court of Pennsylvania explained that, while the legislature may not delegate its lawmaking authority, it may establish "primary objectives or standards" and then entrust some other entity to "fill up the details" of the legislation. (23) In other words, the legislature must provide an "intelligible principle" to which the non-legislative body must conform. (24) The court also underscored that some Pennsylvania nondelegation decisions stress the importance of procedural safeguards like judicial review and notice-and-comment rulemaking, which prevent the arbitrary and capricious exercise of delegated power. (25)

   Applying these precepts, the court concluded that the General Assembly did not provide any guidance or standards in the Distress Law that instructed the Commission concerning when and how to wield its suspension power. (26) Instead, "the Legislature gave the [Commission] what amounts to carte blanche powers to suspend virtually any combination of provisions of the School Code--a statute covering a broad range of topics." (27) Along with the lack of an intelligible principle, the law did not include safeguards to protect against arbitrary, ad hoc decision making, such as a requirement that the Commission hold hearings, allow for public notice and comment, or explain the grounds for its suspensions in a reasoned opinion. (28) Thus, the Court concluded that the legislature, in giving the Commission almost unbridled authority to suspend the School Code, unconstitutionally delegated its lawmaking authority. (29)

2. DELEGATION OF LEGISLATIVE AUTHORITY TO THE AMERICAN MEDICAL ASSOCIATION

   Only a year after West Philadelphia Achievement Charter Elementary School, the Pennsylvania Supreme Court heard another nondelegation challenge. In Protz v. Workers' Compensation Appeal Board, (30) a provision of the state's Workers' Compensation Act (31) was at issue. (32) Under the challenged law, an employer paying workers' compensation benefits could compel the claimant to undergo an impairment-rating evaluation ("IRE") after the claimant had received benefits for roughly two years. (33) During the IRE, a physician would determine the "degree of impairment" caused by the claimant's work injury using the methodology set forth in "the most recent edition" of a book published by the American Medical Association ("AMA") called the Guides to the Evaluation of Permanent Impairment. (34) If the claimant was rated at least fifty percent impaired, he or she would be eligible for lifetime disability benefits. (35) But if the IRE...