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Express or Implied Rulemaking Authority in California

The state agency has authority to adopt regulations sufficient to allow it to complete its required work

By Chris Micheli, November 12, 2022 2:32 pm

California’s 200-plus executive branch agencies, departments, boards, and commissions have either express or implied rulemaking authority. The power to adopt regulations in this state is by use of quasi-legislative authority, which has been delegated by the California Legislature to executive branch administrative agencies. This power comes from a statute enacted by the Legislature, rather than the state Constitution, which grants the lawmaking power to the legislative branch of state government.

As a general rule, the agency gets it power to adopt regulations by a statute that authorizes it to do so (discretionary) or requires it to do so (mandatory). This statutory authority to adopt regulations in this state is defined as being express or implied. Express delegation obviously occurs when the Legislature clearly sets forth its delegated authority to an agency.

Implied rulemaking authority comes from the need for the agency to engage in rulemaking necessary to accomplish its assigned tasks or duties. In other words, the state agency has authority to adopt regulations that are sufficient to allow it to complete its required work. State statutes recognize this implied authority as well.

Government Code Section 11342.1 provides the general rules that nothing in the APA confers authority upon or augments the authority of any state agency to adopt, administer, or enforce any regulation. Each regulation adopted, to be effective, must be within the scope of authority conferred and in accordance with standards prescribed by other provisions of law.

However, Government Code Section 11342.2 provides that, whenever by the express or implied terms of any statute a state agency has authority to adopt regulations to implement, interpret, make specific or otherwise carry out the provisions of the statute, no regulation adopted is valid or effective unless consistent and not in conflict with the statute and reasonably necessary to effectuate the purpose of the statute.

As a result, California law recognizes that agencies in this state have either express or implied authority to adopt regulations. So, even where there is not an express delegation of rulemaking authority, a statutory scheme may imply that the state agency has similar authority in order to adopt regulations to carry out the agency’s statutory duties.

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2 thoughts on “Express or Implied Rulemaking Authority in California

  1. Funny, it took a constitutional amendment to give the state fish and game commission the authority to set fish and game laws back in 1940 or 45, I forget exactly. One senator that opposed it specifically stated it was a bad idea, and that it was the first and only time the legislature extended the power to legislate to an agency that was not the state legislature. I have been warning about the creeping nature of administrative law for over 20 years, and how the agencies that use it have been usurping other branches of government, as if there was no separation of powers

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