Maryland - General Opinions
The Attorney General of Maryland
Office of Counsel to the General Assembly
April 23, 1999
The Honorable Parris N. Glendening
Governor
State House
Annapolis, MD 21401-1991
Dear Governor Glendening:
We have reviewed and hereby approve for constitutionality and legal sufficiency Senate Bill 590 and House Bill 429, identical bills concerning the Nurse Multistate Licensure Compact. In approving the bills, we have concluded that they do not invalidly delegate legislative power and that the compact does not require congressional approval. We also point out a minor drafting error that may be addressed in next year's corrective bill.
Senate Bill 590 and House Bill 429 enact a Nurse Multistate Licensure Compact under which a license to practice nursing issued by a home state to a resident of that state will be recognized by each party state as authorization for a multistate licensing privilege to practice as a nurse in a party state. The Attorney General of Kansas has opined that this compact constitutes an unconstitutional delegation of legislation power. Kansas Attorney General Opinion No. 99-3 (February 9, 1999). We respectfully disagree.
It is not clear that the compact amounts to a delegation at all. The constitutional concern with delegation arises when the legislature redelegates its lawmaking authority to others, that is, when a body other than the legislature is permitted to determine what the law will be. Board of Trustees v. City of Baltimore, 317 Md 72 (1989). In enacting the compact, the General Assembly has determined that the law will permit the practice of nursing in this State by persons who are residents of, and licensed in, another state, based on the license from the other state. It is our view that this no more constitutes an invalid delegation of legislation power than do the provisions of law that permit a nonresident of this State to drive here based on an out-of-state driver's license. See Transportation Article. §16-102(a)(9).
Even if the compact is viewed as a delegation of legislative authority to determine the qualifications of nurses, it is well-established that the principle of nondelegation is not absolute, and that authority may be delegated under Maryland law, either to administrative agencies or to private entities. Board of Trustees v. City of Baltimore, 317 Md at 94. Broad delegations of legislative authority have been found to be particularly appropriate in the areas of public health and safety. Department of Transportation v. Armacost, 311 Md 64, 73 (1987). And delegations with respect to qualifications for licensure are particularly common. See, e.g., Lucas v. Maine Commission of Pharmacy, 472 A 2d 904 (Me. 1984); Packer v. Board of Behavioral Science Examiners, 125 Cal. Rptr. 1975); see also, Bode v. Barrett, 106 N.E. 2d 521 (Ill 1952), affirmed 344 U.S. 583 (1953).
We have also considered whether the compact requires the consent of Congress pursuant to Art. I, Sec. 10, Cl. 3 of the Federal Constitution. This clause does not require the consent of Congress for all agreements between the States. Rather, congressional consent is only required where an agreement tends to increase the political power of the states and may encroach upon or interfere with the just supremacy of the United States. United States Steel Corp. v. Multistate Tax Commission, 434 U.S. 452, 471 (1978). As the compact which is the subject of SB 590 / HB 429 merely provides for reciprocity in nurses licensing and discipline, it is our view that it is not the sort of compact which requires the consent of Congress.
As originally introduced, Section 2 of both bills provided that "this Act may not take effect until a substantially similar act is passed by at least one other state, as defined in Article II(m) of this Compact," and Section 3 provided that "subject to Section 2 of this Act, this Act shall take effect July 1, 1999." In the course of passage the bills were amended to add a new Section 2, so that the original Sections 2 and 3 became Sections 3 and 4, respectively. However, no amendment was made to Section 4 to reflect this change, so that it still refers to Section 2. This matter can be addressed in next year's corrective bill.
Very truly yours,
J. Joseph Curran, Jr.
Attorney General