Legislative Grants of Rulemaking Authority

Pursuant to Article IV of the California Constitution, the legislative branch of state government is granted authority to make laws. The Legislature also has the power to delegate some of its lawmaking authority to the executive branch (called “delegation of authority”). The Legislature does this by granting quasi-legislative authority or rulemaking authority to state agencies, departments, boards, and commissions.

The Legislature is limited in the extent to which the quasi-legislative authority can be delegated to an executive branch entity. In general, the authority must be provided with some standards. This authority is granted generally or specifically. In addition, the grant can be permissive or mandatory.

This grant of authority occurs by statute. In other words, the Legislature will specify in statute the type of rulemaking authority that is being granted to the state agency. And that statutory grant will be some combination of general, specific, mandatory, or discretionary. The following are examples taken from recent bills or statutes:

Examples of a General Grant of Authority

The Secretary of State may adopt regulations to implement this division.

OR

The Attorney General shall adopt regulations to implement this section.

Examples of a Specific Grant of Authority

The commission shall adopt, by regulation, electric vehicle charging standards to be incorporated into other building design and construction standards.

OR

The commission, in cooperation with the Department of Food and Agriculture, shall adopt regulations governing the entry, importation, possession, transportation, keeping, confinement, or release of any and all wild animals that will be or that have been imported into this state pursuant to this chapter.

Examples of a Mandatory Grant of Authority

The director shall adopt regulations implementing this section.

OR

The board shall develop and adopt regulations to provide greater specificity as to the methods and practices for determining water availability in the issuance and administration of water right permits and licenses.

Examples of a Permissive Grant of Authority

The department may adopt regulations for determining whether products comply with the requirements of this section.

OR

The commissioner shall have the authority to adopt regulations relating to the procedures for an employee to make a complaint alleging a violation of this part.

All of the above examples are taken from recently-introduced bills in the 2022 Legislative Session and are similar to the language found in existing statutes. Similar language is used throughout the 29 Codes concerning rulemaking authority for executive branch agencies.