Document Type

Article

Publication Date

1984

Abstract

There is little doubt that in order to best fulfill public policy goals,

coordination between the federal and state governments is

desirable.' Coordination has been sought over the years, for example,

by federal grants-in-aid, and the enactment of federal laws which are

dependent upon state law. One technique which has been employed

by the states to further coordinate state and federal law is incorporation

of federal law into state law. Although it is beyond question that

there is no constitutional problem when a state legislature adopts

existing federal law or regulations: constitutional questions do arise

when a state attempts to adopt future federal laws or regulations. The

regional reporters are replete with cases stating that statutes which

incorporate future federal law are unconstitutional because they impermissably

delegate legislative power from the state legislatures to the

federal government. The basic rationale of these cases is that by

incorporating future federal law, the state legislatures are abdicating

their legislative power because they maintain no control over Congress

or any federal agency.

The purpose of this article is to discuss state adoption of future

federal law. After presenting a brief introduction to the delegation

doctrine, the article will analyze cases from various states which have

addressed challenges on delegation grounds to state statutes which

attempt to adopt future federal law. This analysis will show that statements

such as that made by one state court that "the courts have

uniformly and without deviation held that any attempt by the legislature

to incorporate into our law future [federal] regulations is an

unconstitutional delegation" is misleadingly broad in that they suggest

that states can never incorporate future federal law. The article will

then attempt to provide a framework which differs from the one

usually employed by courts in analyzing this issue. Finally, the article

will apply this approach to a few substantive areas where states have

attempted to adopt future federal law.

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