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On April 13th 2023, Missouri Attorney General Andrew Bailey announced an emergency regulation which in most cases would ban gender-affirming care for trans people in the state (link):

In an effort to protect children, Missouri Attorney General Andrew Bailey promulgated an emergency regulation clarifying that, because gender transition interventions are experimental and have significant side effects, state law already prohibits performing those procedures in the absence of substantial guardrails that ensure informed consent and adequate access to mental health care. ... The regulation outlines that in order for gender transition interventions to comply with state law, the following guardrails must be in place:

While the wording of the announcement suggests that this is only a "clarification" of the existing law, it is also described as an emergency regulation, suggesting it is new ─ and as far as I know the particular guardrails described in the regulation are not specified this way in prior legislation passed by Missouri's legislative chambers. Additionally, the announcement says:

Attorney General Bailey’s emergency regulation becomes effective April 27, 2023, and expires February 6, 2024.

But if the regulation's requirements already existed in the law, then they would already be effective even before the announcement, and would not have an expiration date (unless the existing law itself was already set to expire at that date).

This raises the question: what, if anything, gives these specific new guardrails the force of law? By my understanding, it is up to the legislative branch to decide the laws, and up to the judicial branch to interpret the meaning of those laws (e.g. what constitutes "substantial guardrails" or "informed consent" if these terms occur in the text of a law). But the Attorney General is an executive officer; he has the discretion to tell his prosecutors which offences to focus on, but not the power to decide what is or isn't an offence, unless the legislative branch has delegated that power to him somehow. But typically powers to regulate healthcare would be delegated to an executive body that is involved in healthcare, not law enforcement.


It's been reported on May 1st 2023 that a court has temporarily blocked this emergency regulation from taking effect (link), but for the purposes of this question this doesn't matter ─ I am only asking what gives the state Attorney General power to create such a regulation (if indeed it is a new regulation), not whether this regulation is likely to be found constitutional or not.

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The executive has no inherent rule-making authority to create subordinate legislation (i.e. regulations)

Only when rule-making authority has been delegated by legislation to an executive agency or actor can that executive entity create subordinate legislation (regulations). See generally Victorian Stevedoring & General Contracting Company Pty Ltd v Dignan Informant [1931] HCA 34; (1931) 46 CLR 73.

See also Stephen Bourke, "Subordinate Rule Making - An Historical Perspective" (1991) Admin Review:

The High Court has never doubted that Parliament can delegate legislative power to the Executive. ... Accepting that Parliament could delegate its legislative power, attention was turned very early in the life of the Federation to scrutiny of the Executive in the exercise of its delegated legislative power.

And Moira Coombs, "Making the Rules: A Comparison Between the United States and Australian Systems" (2002) 32 AIAL Forum 25 at p. 28:

In Australia it is the norm that an Act of Parliament will set out the broad scheme of a policy or program within a fairly detailed framework, with executive law-making confined to matters too technical, trivial, detailed or changing to justify the procedural solemnity and rigour of an Act of Parliament. The delegated legislation is part of the primary legislative program that is put in place by the responsible Minister for the relevant portfolio.

And at p. 35:

Parliament authorizes the making of a specific delegation of power under various statutes and although approval is made to make delegated legislation in a particular subject area, 'it should not be assumed to give the executive government an absolute discretion to make whatever legislation it thinks fit.' ...

...

In Australia a particular statute will indicate a delegation of power to the Executive and specify the subject area in which the agency may make rules and also specify the type of instrument to be made under that delegation.

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Subordinate legislation making is an inherent power of the Executive

Responsibility for administering each Act of Parliament is allocated to a particular Minister. That Minister can promulgate subordinate legislation (including Regulations) to give effect to the primary legislation.

In some cases, the primary legislation may explicitly defer specific detail to the regulations but, in any event, the Minister has the power to do this notwithstanding. Regulations must be tabled before both Houses of Parliament (except in Queensland because they only have one) within 14 days of promulgation and either House may disallow them.

Even if not disallowed, when a case comes before a court, the regulation may be struck down if it conflicts with the primary legislation in exactly the same way primary legislation may be struck down if it conflicts with the Constitution.

Given that Parliamentary procedure and separation of powers in the USA and Australia derives from 18th century English practice, while substantially different in detail, the basic functions are likely to be the same.

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  • Thanks ─ I was not aware of the distinction between primary and subordinate legislation, but it seems very relevant. That said, you mention "a particular Minister", but would that ever be the Attorney General? In the UK at least, ministers have power over their own offices but it doesn't seem like healthcare regulation would be within the AG's purview.
    – kaya3
    May 1, 2023 at 22:59
  • Minister’s responsibilities can overlap and the AG, being responsible for “law” has a pretty wide-ranging portfolio. The regulation may have been under a law relating to the operation of the courts wrt legislation over health care.
    – Dale M
    May 2, 2023 at 1:06

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