The Michigan Supreme Court has explored the nondelegation doctrine in two of its recent decisions. While neither of these cases is perfectly analogous to the instant case, the two rulings provide some useful guidelines.

The nondelegation doctrine was discussed at length in Taylor v Smithkline Beecham Corp, 468 Mich 1; 658 NW2d 127 (2003). The Michigan Supreme Court gave a general description of the nondelegation doctrine:

A simple statement of this doctrine is found in Field v Clark, 143 US 649, 692; 12 S Ct 495; 36 L Ed 294 (1892), in which the United States Supreme Court explained that “the integrity and maintenance of the system of government ordained by the Constitution” precludes Congress from delegating its legislative power to either the executive branch or the judicial branch. This concept has its roots in the separation of powers principle underlying our tripartite system of government. Yet, the United States Supreme Court, as well as this Court, has also recognized “that the separation of powers principle, and the nondelegation doctrine in particular, do not prevent Congress [or our Legislature] from obtaining the assistance of the coordinate Branches.” Mistretta v United States, 488 US 361, 371; 109 S Ct 647; 102 L Ed2d 714 (1989).

Id. at 8 (footnotes omitted). The Michigan Supreme Court explained that there are two general types of nondelegation claims. One type was the claim at issue in Taylor, where the Legislature premised government action on findings by an independent body (the U.S. Food and Drug Administration in that case). Id. at 10.[5] The other type is the claim at issue in the instant case, where a delegation of legislative power has been made to a state agency or department.

In Blank v Dep’t of Corrections, 462 Mich 103; 611 NW2d 530 (2000), the Michigan Supreme Court discussed the constitutionality of the Joint Committee on Administrative Rules (JCAR), a legislative committee. JCAR was created to ensure that the Legislature approved of all rules being promulgated by the agencies. Unless approved by JCAR or the Legislature itself, the rules in question could not be implemented. The lead opinion in Blank, which was authored by Justice Kelly and signed by Justices Corrigan and Young, described the question presented:

The Legislature’s statutory delegation of authority to executive branch agencies to adopt rules and regulations consistent with the purpose of the statute does not violate the separation of powers provision. The issue here is whether the Legislature, upon delegating such authority, may retain the right to approve or disapprove rules proposed by executive branch agencies.

Id. at 113. The lead opinion stated that where JCAR does not approve of a rule, it is making a policy determination, and “Policy determinations are fundamentally a legislative function.” Id. at 116. Justice Weaver joined the lead opinion, but made clear that she was going to “leave to another case the question of the constitutionality of the delegation of rulemaking authority to agencies.” Id. at 130 (Weaver, J. concurring). Thus, there were four votes for the proposition that policy determinations are fundamentally a legislative function.[6]

The above guidelines assist in interpreting the Westervelt lead opinion’s test as it is applied to 2004 PA 326. Of particular importance is the Blank court’s explanation that policy determinations are fundamentally a legislative function.


[5] In Taylor, the plaintiffs claimed that MCL 600.2946(5), which prohibits product liability lawsuits where the U.S. Food and Drug Administration (FDA) has approved the drug, impermissibly delegated legislative authority to the FDA. The Michigan Supreme Court rejected this claim.

[6] Having found that the decision regarding whether to adopt administrative rules was legislative, the Michigan Supreme Court held that JCAR could not prevent implementation of such rules.