Legislative Nature of Rulemaking

Creation of rules and regulations is the solely the duty of the legislature.  Since rulemaking is largely concerned with question of policy, it is considered as a legislative or quasi-legislative function.  The power to make rules and regulations can be delegated by the legislature to an administrative agency.  Regulatory power is not granted by the constitution, but only through delegation by the legislature.  Such power to delegate rule making power derives only from an authorizing or empowering statute.  The reason for empowering the legislature to delegate rulemaking power is because an administrative program created by Congress can be executed in its full sense only by formulating policy and crafting rules to fill any gap.

In Tahoe-Sierra Pres. Council v. State Water Res. Control Bd., 210 Cal. App. 3d 1421 (Cal. App. 3d Dist. 1989), appellant landowners brought an action against a state water board, alleging that respondent’s plan to prevent increased surface runoff was unconstitutional.  The appellant alleged that it resulted in a regulatory taking of their property without just compensation and sought review of the lower court decision granting judgment on the pleadings to respondent.  The judgment was affirmed by the appellate court and held that the plan was constitutional.  Upon the issue of taking claim the Court modified the lower court’s judgment on the ground that it was not ripe for review because appellants failed to seek just compensation or an administrative determination.


Inside Legislative Nature of Rulemaking