Berks County Bar Association The Berks Barrister Spring 2018 - 36

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Protz

May Affect More Than Work
Comp Practitioners
By Joel A. Ready, Esquire

I

t doesn't matter what the rules say if the rules weren't
constitutional to begin with. That's the broad takeaway from
Protz v. WCAB (Derry Area Sch. Dist.), 161 A.2d 827, 835
(Pa. 2017), a Supreme Court of Pennsylvania case decided last
year of which every attorney in the Commonwealth should be
aware. Protz has garnered significant attention, making workers'
compensation attorneys aware that major changes to impairment
rating evaluations have occurred. The legislature has rushed to
pass a constitutional replacement for the statute stricken by the
Court-but the long-term significance of Protz will reach far
beyond the slice of workers' compensation law that brought the
issue to the Supreme Court of Pennsylvania in the first place.
Protz dealt with a portion of the workers' compensation
statute that incorporated by reference the American Medical
Association's standards on disability. This incorporation required
individuals to be measured against standards promulgated
by a private body rather than the General Assembly, and this
delegation of "law making power" violated the non-delegation
doctrine inherent in the "legislative vesting" clause of the state
constitution in Article II, § 1 ("The legislative power of this
Commonwealth shall be vested in a General Assembly..."). This
"vesting clause" language is parallel to the Federal Constitution's
language in Article I, § 1, which means that "Our Members of
Congress could not, even if they wished, vote all power to the
President and adjourn" forever. Mistretta v. U.S., 488 U.S. 361
(Scalia, J., dissenting).
Non-delegation arises out of the separation of powers, the
very soul of 1776's revolution against arbitrary usurpations of
authority. John Locke, the legendary political theorist, argued
that legislative power consists of the ability "to make laws, and
36 | Berks Barrister

not to make legislators." Second Treatise of Government, p. 87.
William Blackstone, the great commentator on the laws of
England, described (some would say advocated the creation of )
English separation of powers and restraint on encroachment
of the parliament on the King's power. His works, in turn,
profoundly impacted the Founding Fathers, who, having
been burned by a Monarch's power, gave three branches of
government their own unique set of weapons by which to
restrain the other branches.
Non-delegation doctrine, however, is less of a wall against
tyranny than a confused border-sentry who is unable to
consistently determine what to stop and what to allow. This
is because, as Madison noted in Federalist 48, the complete
separation of legislative, executive and judicial functions
"can never in practice be duly maintained." As Justice Scalia
observed more recently, "a certain degree of discretion, and
thus of lawmaking, inheres in most executive or judicial
action." Mistretta v. U.S. (Scalia, J., dissenting). There is a "true
distinction," Justice Harlan the Elder told us, "between the
delegation of power to make the law . . . and conferring authority
or discretion as to its execution." Field v. Clark, 143 U.S. 649
(1892).
As a result of this difficulty in line drawing, non-delegation
doctrine has largely fallen quiet in the federal system. This
year, the Supreme Court again intends to take up the question
in Gundy v. United States, where the Petitioner argues that
the Federal Sex Offender Registration and Notification Act
(SORNA) violates the non-delegation doctrine by giving the
Attorney General plenary power to determine the registration
requirements of sex offenders with no further guidance from


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Berks County Bar Association The Berks Barrister Spring 2018

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