This Is an Interesting Limit on Rulemaking Power

This Is an Interesting Limit on Rulemaking Power By Chris Micheli

            In perusing statutes in California’s 29 Codes, and with a keen interest in administrative law and the rulemaking process, I came across this interesting provision of state law:

Fish and Game Code Section 6885 states that the Fish and Game Commission has “no power to modify the provisions of this article by any order, rule, or regulation.”

What makes this statutory provision interesting? Executive branch agencies, departments, boards, commissions, and bureaus can engage in quasi-legislative activity (i.e., rulemaking) generally through a statutory grant of lawmaking authority that obviously comes from the enactment of a statute by the Legislature (who is granted lawmaking power by the state Constitution) and signed into law by the Governor (who essentially oversees the executive branch bureaucracy).

However, in this case, the Legislature enacted a statutory provision prohibiting a state commission in the executive branch from enacting any order, rule, or regulation to implement or interpret an entire statutory scheme (i.e., the Article). As a result, this particular commission does not have rulemaking authority in regards to these provisions of the California Fish and Game Code.

The Legislature might want to consider similar statutory limitations on executive branch entities and their rulemaking power when it deems that appropriate. There is a precedent for doing so in the California Fish and Game Code. And these limitations are much better than statutory exemptions from the Administrative Procedure Act (APA) created by the Legislature every year.

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