Three Doctrines, One Constitution: Reconciling Kentucky's Conflicting Nondelegation Jurisprudence
Recently, in FCC v. Consumers’ Research, the Supreme Court rejected a challenge to a congressional delegation of power to the FCC to assess payments from telecommunications companies to subsidize communications services in underserved communities, missing another opportunity to return to a strict prohibition on Congress’s delegation of its legislative power to the executive branch.[1] However, if states are, as Justice Louis Brandeis famously said, “laborator[ies]” for “novel social and economic experiments,” a state with a strong non-delegation doctrine could be a model for a better federal future.[2] It appears as though that future has arrived in Kentucky. The state’s highest court once boasted that “[perhaps] no other state forming part of the national government of the United States has a Constitution whose language more emphatically separates and perpetuates what might be termed the American tripod form of government,”[3]and the federal Sixth Circuit has endorsed this notion.[4]
However, the Kentucky Supreme Court’s vaunting of the strength of its own separation of powers doctrine is difficult to square with its decision in Beshear v. Acree. There, it unanimously upheld the state legislature’s delegation of power to the governor to “ensure the continuity and effectiveness of government in time of emergency,” which Governor Andy Beshear wielded to close businesses and limit large gatherings during the COVID-19 outbreak.[5] Applying the federal “intelligible principle” test, and also relying on a dubious “[implied] tilt” of the balance of power in the Kentucky Constitution towards the governor in emergency situations, the court determined that the criteria that the emergency orders must “protect life and property … and … public … health” were sufficient to guide the governor.[6] From this, Kentucky seems little different from the many other states and the federal government that have bored through the separation of powers.
In reality, Kentucky’s separation-of-powers jurisprudence seems to reflect three lines of precedent setting different rules for permissible delegation, which the state supreme court has selectively applied to reach desired outcomes and meet contemporary ideological preferences, leaving the inconsistencies unaddressed. The state could still serve as a model of strong non-delegation jurisprudence for other states and the federal government, but only if justices are elected who are committed to upholding the doctrine and litigants strategically compel the courts to reconcile the conflicting precedents in favor of the strongest constitutional limits on delegation.
The Kentucky Constitution requires that “[n]o person or collection of persons, being of one of [the executive, legislative, judicial] departments, shall exercise any power properly belonging to one of the others.”[7] Yet despite this clear mandate, in the early 20th century, the state was not immune to the nationwide expansion of bureaucratic governance, as shown in State Racing Comm’n v. Latonia Agric. Assoc., where a racetrack operator lost its license for violating the racing commission’s prohibition on sportsbook gambling, and then challenged the validity of the underlying delegation.[8] The Court of Appeals, then the state’s highest court, acknowledged that “[t]he Legislature cannot delegate to another body the power to make laws.”[9] To square the commission’s ability to make “rules and regulations” with this principle, the Latonia court characterized the delegation as a grant authority to the commission to determine the “detail of execution” of the law, as opposed to an impermissible grant of lawmaking power.[10]
A competing nondelegation doctrine emerged in 1939 with the Kentucky Court of Appeals’ decision in Bloemer v. Turner, which struck down a regulation issued by the Kentucky Agricultural Experiment Station. The agency had enacted a water content labeling requirement for dog food, relying on delegated authority to make “rules and regulations” governing “concentrated commercial feeding stuffs.”[11] Because the legislature had already required specific disclosures by statute, the court reasoned that requiring additional disclosures was a nondelegable legislative act.[12] This case established that the separation-of-powers provisions in the Kentucky Constitution create a stronger non-delegation doctrine than exists federally.[13] Building on Bloemer, subsequent Kentucky decisions put more limits on legislative delegations; for example, the legislature must make a clear statement in the underlying statute that it intends to delegate its power,[14] and the statute must give individuals fair notice that they will be subject to regulatory obligations lest it be struck down for vagueness.[15]
The zenith of the Kentucky Supreme Court’s anti-delegation jurisprudence came in 2003 with Board of Trustees of Judicial Form Retirement System. v. Attorney General of the Commonwealth of Kentucky. In that case, the court reaffirmed that the Kentucky state constitution creates a “higher standard” than the federal “intelligible principle” test. The court emphasized that, unlike the federal Constitution, which contains no explicit prohibition of delegation, Kentucky’s Constitution includes a “provision expressly forbidding the Congress to delegate its legislative powers[,]” which, in the court’s view, more stringently restricts the state legislature from transferring its lawmaking power to other branches.[16] Applying that standard, the Judicial Form Retirement court struck down a statutory amendment that delegated to the executive branch the authority to determine minimums for the accrual of retirement benefits—a determination to be made based on the statute’s vague reference to a cost-of-living formula found in a separate, inapplicable statute.[17] Because the statute lacked any ascertainable “standards controlling the exercise of administrative discretion,” the court held that it both failed to provide coherent guidance or an “intelligible principle” to the executive agency and equally failed to provide sufficient notice to those parties potentially affected by the statute—and it thus violated Kentucy’s stricter constitutional limitation on legislative delegation.[18]
Even as Kentucky has charted a path to a stronger non-delegation doctrine than the federal baseline, however, in some cases, the Kentucky courts have seemingly ignored or sidestepped these otherwise promising developments. In such cases, the Kentucky Court of Appeal’s 1909 ruling in Latonia remained a touchstone that later courts cited without reference to the stricter standard from Bloemer and its progeny. Meanwhile, a new line of cases—far more permissive of delegation—began to take shape in Kentucky, as well, dispensing with not only the requirement that a delegating statute include meaningful guidance or standards, but with the requirement that the statute even contain an intelligible principle . In 1961, the Court of Appeals held in Butler v. United Cerebral Palsy of N. Ky., Inc. that a delegation of legislative authority to an executive agency does not require “standards” to guide the agency as long as the delegating statute includes sufficient procedural “safeguards”—a term that the court declined to define, but which it held to be satisfied by the age, responsibility, and expertise of the delegatee (in this case, the Board of Education).[19]
Half a century later, the Kentucky Supreme Court’s 2012 decision in TECO Mech. Contractor, Inc. v. Commonwealth revived Butler’s lenient approach to legislative delegation, upholding a statute that authorized the executive branch to set prevailing wage rates for workers on public works contracts, despite the fact that the statute included no standards or intelligible principle, relying only on vague procedural “safeguards.”[20] Notably, the TECO court made no effort to reconcile its decision with its ruling in Judicial Form Retirement, which just nine years earlier had reaffirmed the Kentucky Constitution’s more exacting nondelegation standard—one that invalidates statutes lacking clear, substantive guidance and constraints on agency discretion. That stricter framework, articulated in Judicial Form Retirement and previously grounded in Bloemer and its progeny, reflects a longstanding doctrinal commitment to prohibiting open-ended transfers of legislative authority. As a result, Kentucky’s jurisprudence now features three separate nondelegation doctrines, ranging from permissive proceduralism to stringent substantive limits, which coexist on an uneasy collision course in Kentucky’s constitutional framework.
Unless the Kentucky courts confront and resolve the conflict between the Latonia, Bloemer, and Butler standards, confusion and doctrinal inconsistency will continue to cloud the state’s separation-of-powers jurisprudence. In this confusion, however, lies an opportunity for advocates of a robust nondelegation doctrine to forge a strict separation-of-powers model that can lead other states and the federal government by example. Since Kentucky’s Supreme Court justices are elected,[21] the ball is in the people’s court to identify and support candidates committed to ensuring that the strong nondelegation doctrine applied in cases like Judicial Form Retirement is the prevailing law of the Commonwealth. Once the bench is aligned with that commitment, targeted litigation must follow that will compel the Court to resolve the inconsistency at the heart of its nondelegation jurisprudence.
[1] FCC v. Consumers’ Research,145 S. Ct. 2482, 2491 (2025); see also Brief Amicus Curiae of the New Civil Liberties Alliance in Support of Respondents, Consumers’ Research,145 S. Ct. 2482 (2025).
[2] New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
[3] Sibert v. Garrett, 246 S.W. 455, 457 (Ky. 1922).
[4] See Maxwell’s Pic-Pac, Inc. v. Dehner, 739 F.3d 936 (6th Cir. 2014) (citing Bd. of Trs. of Jud. Form Ret. Sys. v. Att’y Gen. of the Commonwealth of Ky., 132 S.W.3d 770, 782 (Ky. 2003)).
[5] Beshear v. Acree, 615 S.W.3d 780, 790, 810, 813 (Ky. 2020) (quoting Ky. Rev. Stat. Ann. §39A.010 (West 2025)).
[6] Beshear, 615 S.W.3d at 808, 810 (first quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928); then quoting Ky. Rev. Stat. Ann. §39A.010 (West 2025)).
[7] Ky. Const. § 28.
[8] State Racing Comm’n v. Latonia Agric. Assoc., 123 S.W. 681, 682 (Ky. 1909).
[9] Id. at 685.
[10] Id.
[11] Bloemer v. Turner, 137 S.W.2d 387, 388-89, 392 (Ky. 1939) (citation omitted).
[12] Id. at 391-92.
[13] Id. at 390-91 (citing Ky. Const. §§ 27, 29, 60).
[14] See Henry v. Parrish, 211 S.W.2d 418, 422 (Ky. 1948).
[15] See Diemer v. Commonwealth of Ky., Transp. Cabinet, Dept. of Highways, 86 S.W.2d 861, 865 (Ky. 1990).
[16] Bd. of Trs. of Jud. Form Ret. Sys. v. Att’y Gen. of the Commonwealth of Ky., 132 S.W.3d 770, 782 (Ky. 2003) (quoting Bloemer, 137 S.W.2d at 390-91).
[17] Id. at 773.
[18] Judicial Form Retirement, 132 S.W.3d at 772, 785.
[19] Butler v. United Cerebral Palsy of N. Ky., Inc., 352 S.W.2d 203, 208 (Ky. 1961) (quoting Kenneth Culp Davis, Administrative Law Treatise § 22.11).
[20] TECO Mech. Contractor, Inc. v. Commonwealth, 366 S.W.3d 386, 398 (Ky. 2012).
[21] About the Courts, Ky. Ct. of Just., https://www.kycourts.gov/Courts/Pages/default.aspx (last visited Jul. 28, 2025).
November 24, 2025