Did Louisiana’s AG consider the proposed Nurse Licensure Compact an unconstitutional delegation?

Plain-English summary

The Nursing Supply and Demand Commission asked whether Louisiana could constitutionally join the proposed Nurse Licensure Compact. The proposal would let a nurse licensed in one member state practice in another without obtaining a second license or endorsement. The AG concluded that the proposed compact would unconstitutionally delegate legislative authority. In its view, absolute reciprocity would give other states' legislatures the unqualified power to determine qualifications for nonresident nursing practice in Louisiana.

The opinion applied a Louisiana delegation test asking whether the enabling law expressed legislative policy, supplied standards, and included procedural safeguards. It said the proposed compact failed each element because the decisive standards would be set outside Louisiana. This was an assessment of the proposal before the AG in 2006, not a determination of any later compact or licensing law.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why did the AG object to the proposed nurse compact?

It said reciprocal practice without a second license or endorsement would let other states' legislative choices govern who could practice nursing in Louisiana, without sufficient Louisiana standards and safeguards.

What test did the opinion use for delegation of legislative power?

It cited the Louisiana Supreme Court's three-part test: clear legislative policy, sufficient standards to guide administration, and adequate procedural safeguards against abuse of discretion.

Did this opinion decide whether a later nurse compact was valid?

No. The opinion analyzed the particular proposal submitted in 2006. It did not address later statutory or compact terms.

Background and statutory framework

The AG distinguished delegating administrative details within legislatively prescribed limits from transferring fundamental policy choices. It relied on Louisiana Supreme Court delegation decisions and said the proposed compact went further by transferring authority through other states' legislatures to their agencies.

Citations

• State v. Union Tank Car Co. and State v. All Pro Paint and Body Shop, Inc. (delegation standards quoted).
• Schwegmann Brothers Giant Super Markets v. McCrory (administrative-versus-legislative distinction quoted).

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/06-0062

Original opinion text

October 20, 2006
OPINION NO. 06-0062
15-A CONSTITUTIONAL LAW
75-A NURSES

Because the Proposed Nurse Compact for
Mr. E. Wade Shows
Louisiana fails the delegation test and because
Shows, Cali, Berthelot & Morris, LLP
the compact would, through absolute reciprocity,
allow other states’ legislatures the unqualified
644 St. Ferdinand Street
right to determine the qualifications for the
Baton Rouge, LA 70821
practice of nursing in this state by nonresidents,
we believe the compact would be an unconstitutional delegation of legislative
Dear Mr. Shows: authority.

You requested an opinion of this office on behalf of the Nursing Supply and Demand Commission to determine if it would be constitutional for Louisiana to join the Nurse Licensure Compact (Compact). Under the Compact, nurses licensed in Louisiana would be allowed to practice in other participating Compact states, and also nurses licensed in other participating Compact states would be allowed to practice in Louisiana. Both situations would be allowed without a license or endorsement from the second state. More particularly you ask if participation in the Compact is an improper delegation of legislative power under the Louisiana Constitution.

In a previous opinion of this office, La. Atty. Gen. Op. No. 97-534, the standard in this area is quoted from State v. Union Tank Car Co., 439 So.2d 377 (La. 1983) and State v. All Pro Paint and Body Shop, Inc., 639 So. 2d 707 (La. 1994), where the Supreme Court observed in State v. Union Tank Car, Co.

It is a well-established rule of constitutional jurisprudence that although the legislature may not delegate purely legislative power, it may declare its will, and, after fixing a primary standard, devolve upon administrative officers the power to ‘fill up the details’ by prescribing administrative rules and regulations . . . . In other words, although the legislature may not delegate the legislative power to determine what the law shall be, it may delegate to administrative boards and agencies of the state the power to ascertain and determine the facts upon which the laws are to be applied and enforced . . . . As explained by this court in the case of Schwegmann Brothers Giant Super Markets v. McCrory,

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Commissioner of Agriculture, 237 La. 768, 112 So.2d 606 (La.
1959) . . . :

‘So long as the regulation or action of the official or board authorized by statute does not in effect determine what the law shall be, or involve the exercise of primary and independent discretion, but only determines within prescribed limits some fact upon which the law by its own terms operates, such regulation is administrative and not legislative in nature’ [Emphasis added.]

Further guidance is presented by the Supreme Court in State of Louisiana vs. All Pro Paint and Body Shop, Inc. and William J. Hampton 639 So.2d 707, 93-1316 (La. 7/5/94) at 711, where the Court restates and reaffirms Schwegmann.

Recognizing that the Louisiana Constitution unequivocally mandates the separation of powers among the three branches of state government, this court in delegation cases traditionally has distinguished between delegations of purely legislative authority, which necessarily violate the separation of powers, and delegations of ministerial or administrative authority, which do not. The court explained the distinction in Schwegmann Brothers Giant Super Markets v. McCrory, 237 La. 768, 787-88, 112 So.2d 606, 613 (1959) (footnotes omitted) (emphasis added).

The Court continues in State v. All Pro Paint, at 712, by presenting a three-prong test to determine if legislative authority has been delegated as follows:

Guided by the principles set forth in Schwegmann and inherent in the constitutional separation of powers, this court has fashioned a three-prong test for determining on a case-by-case basis whether a statute unconstitutionally delegated legislative authority, as opposed to ministerial or administrative authority, to an administrative agency: a delegation of authority to an administrative agency is constitutionally valid if the enabling statute (1) contains a clear expression of legislative policy; (2) prescribes sufficient standards to guide the agency in the execution of that policy, and (3) is accompanied by adequate procedural safeguards to protect against abuse of discretion by the agency. State v. Barthelemy, 545 So.2d 531, 534 (La. 1989); Adams, 458 So.2d at 1298; Union Tank Car, 439 So.2d at 381. This test, which embodies the delegation doctrine as it has evolved in the Louisiana jurisprudence, serves two primary functions vital to preserving the separation of powers required by the Constitution. First, it insures that the fundamental policy decisions in our society will be made

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not by an appointed official but by the body immediately responsible to the people. Second, it prevents judicial review from becoming merely an exercise at large by providing the courts with some measure against which to judge the official action that had been challenged.

The proposed Nurse Compact for Louisiana is not a delegation of authority to an administrative agency of Louisiana, but goes even further by delegating the authority to the legislature of another state and through that legislature to an administrative agency of that state. Clearly the Louisiana Legislature would not be making a clear expression under test one, would not be giving standards under test two and has inadequate procedural safeguards under test three.

Because the proposed Nurse Compact for Louisiana fails the delegation test above and because the compact would, through absolute reciprocity, allow other states’ legislatures the unqualified right to determine the qualifications for the practice of nursing in this state by nonresidents, we believe the compact would be an unconstitutional delegation of legislative authority.

Although many states have adopted the Compact, the Attorney General’s office in the State of Kansas, in their Opinion No. 99-3, using similar reasoning as is used in this Opinion but being based on other statutes and case law, came to a similar conclusion that the Compact was an improper delegation of legislative authority.

We trust that this sufficiently answers your inquiry, however if we may be of further assistance please do not hesitate to contact our office.

Yours truly,

CHARLES C. FOTI, JR.
ATTORNEY GENERAL

BY:
Charles F. Perry
Assistant Attorney General

CCF,Jr./CFP/tp

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SYLLABUS

OPINION NO. 06-0062

15-A CONSTITUTIONAL LAW
75-A NURSES

Because the proposed Nurse Compact for Louisiana fails the delegation test above and because the compact would, through absolute reciprocity, allow other states’ legislatures the unqualified right to determine the qualifications for the practice of nursing in this state by nonresidents, we believe the compact would be an unconstitutional delegation of legislative authority.

DATE REQUESTED: 2/21/06

DATE RELEASED: October 20, 2006

REQUESTED BY: E. Wade Shows
Shows, Cali & Berthelot & Morris, LLP
644 St. Ferdinand Street
P.O. Drawer 4425
Baton Rouge, LA 70821

AUTHOR: Charles F. Perry
Assistant Attorney General
Civil Division/Lands & Natural Resources Section