THE NONDELEGATION DOCTRINE IN THE STATES: HOW THE DOCTRINE HAS BEEN APPLIED IN SOUTH DAKOTA.

I. INTRODUCTION At the federal level, the nondelegation doctrine--prohibiting the delegation of legislative power from Congress to the executive branch--is one of the most debated yet least enforced of constitutional [...]
The United States Constitution's separation of powers doctrine is foundational to the operation of the United States government. In theory, the nondelegation doctrine exists to preserve the separation of powers amongst the three branches of government. The doctrine's purpose is to give sole lawmaking authority to Congress, while yet allowing it to delegate rulemaking authority to an administrative agency, but only if it provides an "intelligible principle" to guide and constrain the agency's rulemaking. While on the surface this appears to be a high standard, the United States Supreme Court has not struck down a law promulgated by an administrative agency for violating the nondelegation doctrine since 1935. Therefore, at the federal level, the nondelegation doctrine is rather dead. Nevertheless, a recent study has suggested that at the state level the nondelegation doctrine is very much alive. This paper analyzes South Dakota caselaw and finds that, since 1935, the South Dakota Supreme Court has struck down numerous administrative rules for violating the nondelegation doctrine. This paper suggests that, if South Dakota is any indication of the viability of the nondelegation doctrine in the other forty-nine states, the nondelegation doctrine is in fact alive and well in the states.