Separation of Powers
Garcia v New York City Dept. of Health & Mental Hygiene, 2018 NY Slip Op 04778, Court of Appeals
Among the issues addressed by the Court of Appeals in this action was an alleged violation of the doctrine of Separation of Powers.
In response to the Appellate Division's holding that the adoption of certain administrative rules violated the separation of powers doctrine, New York City argued that the legislature has properly delegated to New York City's Board of Health, through Administrative Code §17-109, the necessary authority to promulgate the rules at issue.* The City contended that the Appellate Division inappropriately applied the so-called Boreali factors** "to second-guess the manner in which the Board exercised its regulatory authority, instead of merely determining whether the Board possessed the requisite authority to promulgate the rules in the first instance."
The Court of Appeals agreed. Citing Matter of NYC C.L.A.S.H., Inc. v New York State Off. of Parks, Recreation & Historic Preserv., 27 NY3d 174, the court explained that "The concept of the separation of powers is the bedrock of the system of government adopted by this State in establishing three coordinate and coequal branches of government, each charged with performing particular functions." This principle, "implied by the separate grants of power to each of the coordinate branches of government, requires that the Legislature make the critical policy decisions, while the executive branch's responsibility is to implement those policies."
Separation of powers challenges, noted the court, "often involve the question of whether a regulatory body has exceeded the scope of its delegated powers and encroached upon the legislative domain of policymaking."
In this regard an administrative agency can adopt regulations that go beyond the text of the relevant legislation, "provided they are not inconsistent with the statutory language or its underlying purposes." On the other hand, as it ruled in Greater N.Y. Taxi Assn., 25 NY3d at 609, the Court of Appeal said that "The guiding legislation 'need not be detailed or precise as to the agency's role' and, as an overarching principle, 'common sense must be applied when reviewing a separation of powers challenge.'"
The "difficult-to-define line between administrative rule-making and legislative policy-making" was clarified [by Boreali] by articulating four "coalescing circumstances" relevant to rendering such a determination as follows:
1. Did the regulatory agency balanced costs and benefits according to preexisting guidelines rather than make value judgments requiring difficult and complex choices between broad policy goals to resolve social problems;
2. Did the regulatory agency "merely filled in details of a broad policy" or did it create its own comprehensive set of rules without benefit of legislative guidance;
3. Had the legislature been unsuccessful in its efforts to enact laws pertaining to the issue; and
4. Did the regulatory agency use "special technical expertise in the applicable field."
Ultimately any Boreali analysis, said the court, "should center on the theme that it is the province of the people's elected representatives, rather than appointed administrators, to resolve difficult social problems by making choices among competing ends" as "A rule has the force of law, but it is not a law; rather, it implements or applies law or policy" and the administrative body must act within the limitations of its legislatively-delegated powers.
Rejecting the Petitioners' separation of powers challenge, the Court of Appeals emphasized that a Boreali analysis is not aimed at determining whether a regulatory agency adopted the most desirable method or type of regulation and the factors enumerated in Boreali "are not designed to second-guess agency regulations that properly falls within the agency's purview." In the event the Boreali factors indicate that the agency has been empowered to regulate the matter in question, the court said that the separation of powers analysis "goes no farther in reviewing the agency's methods."***
* The challenged rules: The City's Board of Health's amendments to the New York City Health Code mandating that children between the ages of 6 months and 59 months who attend city-regulated child care or school-based programs receive annual influenza vaccinations.
** Boreali v Axelrod, 71 NY2d 1.
*** The Court of Appeals also rejected Petitioner's alternative theory, that the City's flu vaccine rules were invalid because they conflicted with the State's Public Health Law and thus violated the Premption Doctrine which expresses "a fundamental limitation on home rule powers" and "embodies the untrammeled primacy of the [l]egislature to act with respect to matters of State concern."
The decision is posted on the Internet at: