Berks County Bar Association The Berks Barrister Spring 2018 - 37

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Congress. It's a tall order, though. If the Supreme Court
of the United States agrees, it would be the first time since
1935 that a ruling from the nation's High Court struck
down anything on non-delegation grounds. SCOTUS
has endorsed sentencing guidelines, the drafting of civil
procedure rules, and commodity price fixing as legitimate
delegations of legislative power, just to name a few. Scalia was
an outspoken critic of this creation of "a sort of junior varsity
Congress." This JV team has grown in size since the 1980s,
however, and some Court-watchers warn that a dramatic
cascade of litigation will occur if SCOTUS gives the nondelegation sentry stronger orders.
Here in Pennsylvania, however, our Constitution's nondelegation doctrine has already been reinvigorated by Protz
(and by a few lesser-known cases before it). AMA guidelines
may be reliable or convenient for the legislature to rope into
the Workers' Compensation process and may avoid regular
statutory updates tracking medical science's progress; but
this delegation represents a dangerous syphoning off of the
concentration of power in the legislature. Conceptually,
the framework is not substantially different in the state or
federal systems. Protz lays out the doctrine's contours: the
legislature may delegate non-essential functions when it 1)
makes the basic policy choices, and 2) includes adequate
standards to guide and restrain the exercise of the delegated
function. Furthermore, delegations to private parties are
more suspect than to executive branch agencies; due process
structures such as public notice and hearing by the delegate
for comment on rule-making are "essential"; and the
accountability of the delegate for action or inaction may also
play a role in the validity of the delegation.
That Pennsylvania's Supreme Court is attentively waiting
to offer greater scrutiny to delegated powers beyond the
workers' comp context is evidenced by Justice Wecht's
concurrence in Shearer v. Hafer, a case from January about
ethical rules governing neuropsychology (decided on other
grounds). Wecht's concurrence in the case sounds the alarm
for practitioners: "I detect a palpable risk that reliance upon
standards written by nongovernmental organizations . . .
may run afoul of the non-delegation doctrine." Concerned
that non-compliance with strict rules created by a nongovernment body could result in discipline of the psychiatrist
in this case, Wecht warned that "boards and agencies should
be cognizant of [the non-delegation doctrine] and should
attend diligently to its implications." Attorneys should be
cognizant that they have at least one sympathetic ear if
they find a delegation of lawmaking authority in a statute
adversely impacting a client.

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One can immediately see the various rules that could be
vulnerable: CYS's dependence on privately-created standards of
child-rearing, ethical rules governing professionals which are created
by private entities, even certain PennDOT regulations on vehicles that
are not statutorily prescribed. We've grown accustomed to delegation
of law-making powers to executive agencies and even private nonprofits; but when clients are faced with rules which weren't created
directly by the legislature, it might be time to test the constitutionality
of the body that created the rules in the first place.
Protz's significance in the world of Workers' Comp is already
being cabined by new legislative proposals and resolving claims
by settlement. But its impact as a constitutional doctrine is just
beginning. Protz is far more than a Workers' Comp update-it is a
clarion constitutional call for private litigants to police state conduct,
and where appropriate, to place unconstitutional rules on ice.
Joel A. Ready is a partner at Cornerstone Law Firm in Blandon,
and the editor of SCOPAreview.com, a website covering the
Supreme Court of Pennsylvania.

Spring 2018 | 37


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Berks County Bar Association The Berks Barrister Spring 2018

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