In Westervelt, the Michigan Supreme Court considered the constitutionality of legislation that delegated the authority to devise rules concerning the use of some Michigan rivers to the Department of Conservation, which later became the Department of Natural Resources (DNR), and the Commission on Conservation, which later became the Natural Resources Commission (NRC). The DNR promulgated rules that divided the rivers into sections and limited what types of watercraft could use these rivers at different times of the year. The plaintiffs in Westervelt contended that the delegation was improper.

The Westervelt lead opinion noted that the “important and ever-occurring legal question of whether particular legislation constitutes an unconstitutional ‘delegation of power’ to administrative agencies is, and has been, the subject of extensive critical debate among some of our most eminent scholars.” 402 Mich at 426. The lead opinion further observed that this issue was “difficult and relatively controversial.” Id.

The lead opinion then discussed the histories of the various tests that have been applied in the nondelegation context, noting that what had emerged was a test including both a separation-of-powers component and a due-process component. Under the separation-of-powers component, delegation legislation that contains sufficient standards does not constitute a violation of the constitutional separation-of-powers requirement:

when legislation contains “defined legislative limits” and “ascertained conditions” (i.e., “standards”), agency rule-making within these “limits” and in accord with these “conditions” is not, in fact, “law-making” and is therefore not an unconstitutional violation of the separation of powers.

Id. at 431.

The Westervelt lead opinion noted that these standards “need only be ‘as reasonably precise as the subject matter requires or permits.’” Id. at 435 (citation omitted). It claimed (without support) that “a flexible, adaptable rule regarding ‘standards’ is necessitated by the exigencies of modern day legislative and administrative government.” Id. at 436.[7] It stated, “The preciseness of the standard will vary with the complexity and/or degree to which [sic] subject regulated will require constantly changing regulation.” Id.

The Westervelt lead opinion indicated that a primary concern in the due process analysis was to prevent administrative favoritism: “[without] definite standards an ordinance becomes an open door to favoritism and discrimination, a ready tool for the suppression of competition through granting of authority to one and the withholding from another.” Id. at 434 (internal citations omitted).[8] The opinion also explained that even though there may be sufficient standards to satisfy the separation-of-powers component, these standards may be too general to meet the due-process component:

[T]he “standards test” as presently expressed, i.e., “standards” need be only “as reasonable as the subject matter requires or permits,” implies the judicial recognition that in some instances it is not possible, nor even desirable, to require legislative standards of a carefully detailed nature. ...

This judicial recognition, inherent in the present “standards test,” exposes a profound legal paradox: the broader, the more “flexible” the legislative “standards” permitted in given legislation (for valid reasons), the less the people are protected from potential discretionary abuse at the hands of administrative officials.

Id. at 442. The Westervelt lead opinion indicated that the important question is whether there are important safeguards, with standards representing just a single factor in that consideration. This point was discussed in footnote 20 of Westervelt, which the Michigan Supreme Court explicitly referenced in its remand order to this Court:

This emphasis on the “safeguards, including ‘standards’ which the legislation affords” in order to best effectuate the due process foundation of the “delegation doctrine” echoes the judicial approach argued by Professor Davis:

The non-delegation doctrine can and should be altered to turn it into an effective and useful judicial tool. Its purpose should no longer be either to prevent delegation of legislative power or to require meaningful statutory standards; its purpose should be the much deeper one of protecting against unnecessary and uncontrolled discretionary power. The focus should no longer be exclusively on standards; it should be on the totality of protections against arbitrariness, including both safeguards and standards. The key should no longer be statutory words; it should be the protections the administrators in fact provide, irrespective of what the statutes say or fail to say. Davis, Administrative Law Treatise, 1970 Supplement, pp 40-41.

402 Mich at 442 n. 20.

In applying the test, the Westervelt lead opinion looked at a statute that said that the Department of Conservation should conserve the resources of the state, including protecting lakes and streams from pollution. Another statute directed that department to make rules “for the protection of lands and property under its control.” 402 Mich at 445. The Westervelt lead opinion stated that these statutes provided sufficient standards to meet the separation-of-powers component. Id. But these standards alone did not provide a sufficient safeguard under the due-process component. Id. Having made that determination, the Westervelt lead opinion then reviewed other safeguards. It noted that the Administrative Procedures Act applied, which it believed provided “extensive due process safeguards to those persons affected by the agency’s rule-making.” Id. at 448. A second safeguard was that all of the members of the Commission on Conservation had to be appointed by the Governor and approved by the Michigan Senate. Id. Taken together, these two safeguards met the due-process component.

[7] This assertion is dubious. Legislatures are capable of writing detailed statutes based on expert testimony; in fact, they already do. Thus, the “standards” component needs to be re-evaluated by the Michigan Supreme Court with a recognition that representative government is weakened when policy decisions are not made solely by those who are directly politically accountable to the people of Michigan. There is no justification for creating a doctrine that simply promotes government’s control over individuals’ lives, particularly when there are only indirect and tenuous democratic checks on the government agency in question.

[8] In this quote, the Westervelt lead opinion used the term “standards” in reference to due process protections. This usage is an example of the ambiguity discussed in footnote 4. When standards are sufficiently specific, they not only maintain an adequate separation of powers, but provide in and of themselves the due process safeguards that are part of the second component of the Westervelt nondelegation test. Thus, the Westervelt lead opinion can speak of “standards” that protect due process. When legislative standards are more general, however, additional safeguards are necessary to protect due process rights, leading to the distinction between “standards” and “safeguards” maintained for the purposes of clarity throughout this brief.