What is the Nondelegation Doctrine and Why Does it Matter to Public Health?
February 8, 2024
In the wake of the COVID-19 pandemic there has been an onslaught of legal challenges to public health authority, some of which cite a rule known as the nondelegation doctrine. The nondelegation doctrine purports to promote accountability by shifting power from unelected officials to legislatures. But in practice, limiting health officers’ authority can impede a health department’s ability to protect communities from harm.
Following the March 2020 outbreak of the COVID-19 pandemic in the U.S., the country has faced an onslaught of legal challenges in federal and state courts targeting public health authority. Although fueled by backlash to COVID-19 responses, some of these lawsuits go far beyond targeting measures to control COVID-19 and instead seek to dismantle the legal frameworks that make possible a wide range of both emergency and routine public health activity.
In a recent trend of cases, plaintiffs are relying on a rule known as the nondelegation doctrine to target these legal frameworks, challenging state public health statutes as unconstitutional delegations of legislative authority. Under the nondelegation doctrine, the legislature may not delegate its lawmaking power to executive branch agencies like public health departments. While application of the doctrine varies across jurisdictions, courts reviewing statutes subject to nondelegation challenges generally look to the breadth of the authority granted. Delegations of discretion broad enough to be considered legislative power may be struck down.
The nondelegation doctrine purports to promote accountability by shifting power from unelected officials to legislatures. But in practice, limiting health officers’ authority can impede a health department’s ability to protect communities from harm. In the public health context, threats often surface and evolve rapidly, and effective interventions must be timely, flexible, and tailored to the characteristics (e.g., mode of transmission, populations at risk) of the threat at hand. Thus, statutes that grant state and local health departments—the entities with the necessary expertise—sufficiently broad and flexible authority to respond to threats are integral to the protection of the public’s health.
Recognizing this context, many courts hearing nondelegation challenges to state public health code provisions have refused to invalidate the challenged provisions on nondelegation grounds. In Sehmel v. Shah, for example, a Washington appellate court rejected a nondelegation challenge to provisions of a Washington public health statute, RCW 43.70.130. The plaintiffs, residents of Washington, filed a declaratory action against the Washington Secretary of Health, seeking to invalidate a 2020 order requiring that persons in Washington state wear masks in certain settings. Among other claims, the plaintiffs contended that RCW 43.70.130, the statute enabling the secretary to issue such orders, violated Washington’s nondelegation doctrine.
The trial court granted summary judgment in favor of the secretary, and, in August 2022, the court of appeals affirmed, concluding that the challenged provisions did not delegate impermissibly broad authority. In reaching its conclusion, the court of appeals emphasized the value of broad delegations in the public health context, noting that, “[a]lthough RCW 43.70.130 delegates broad authority to the secretary, a delegation is not improper simply because it is broad.” Requiring narrower delegations constrained by strict standards would impede efficient government action, particularly in the context of public health threats, which often involve “unforeseen and rapidly changing circumstances.” The COVID-19 pandemic, according to the court, exemplifies the need for flexible authority because “[w]ithout such expansive delegation to the secretary, we may only speculate on how the State could have responded to the  emergency.”
In Becker v. Dane County, the Wisconsin Supreme Court rejected a nondelegation challenge to another public health statute, Wis. Stat. § 252.03. The plaintiffs in Becker argued that local public health orders designed to prevent, suppress, and control the spread of COVID-19 were invalid because they were issued pursuant to overly broad powers delegated by § 252.03. The circuit court rejected the nondelegation argument, among others, and the plaintiffs appealed.
In a July 2022 decision, the Wisconsin Supreme Court concluded that § 252.03, when appropriately read in the public health context, is not impermissibly broad. According to the court, “[a]s is often the case with legal interpretation, context can provide even seemingly broad enabling language meaningful content.” Contrary to the plaintiffs’ arguments, the text of the statute and the public health context “establish an ascertainable ‘general policy’: disrupt the transmission pathways of contagious diseases” through measures that are reasonable and necessary. Put otherwise, the court concluded that § 252.03 does not vest local health officers with unfettered authority; rather, it empowers health officers to protect the public from communicable disease.
While not all courts are denying nondelegation challenges to public health statutes, Sehmel, Becker, and other cases reflect judicial awareness of the critical role legal frameworks play in protecting community health. These cases identify characteristics of the public health field that should inform public health legal frameworks, such as the need for expertise-driven and nimble interventions. They further reject interpretations of public health authority that examine provisions out of context and overstate their scope to undermine agency action. In doing so, these cases uplift the idea that state and local governments have a responsibility to effectively protect and promote the health of communities.
To be sure, accountability to the public and the centering of community voices are essential values that state and local governments must strive to advance in public health activity. But instead of promoting more accountable action, attempts to dismantle the legal frameworks that enable routine and emergency public health measures may stymie government action altogether, threatening the public’s health and particularly the health of vulnerable communities. The COVID-19 pandemic provides an opportunity to reflect on how laws and policies can advance effective and community-driven public health interventions. As cases like Sehmel and Becker recognize, eliminating health departments’ ability to adequately address public health threats frustrates rather than furthers this end.
This post was written by Emma Kaeser, J.D., Staff Attorney, Network for Public Health Law—Mid-States Region.
The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document do not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state. Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not represent the views of (and should not be attributed to) RWJF.