Regulatory law is distinct from statutory law and can also be referred to as administrative law or administrative rules. It is created by government agencies or departments, such as the Michigan Department of Agriculture, the Michigan Department of Health and Human Services or the Michigan Department of Licensing and Regulatory Affairs. Regulatory rules are typically created when the Legislature authorizes a state agency to develop them as it executes and enforces legislative mandates. Statutes passed by the Legislature are not often well-defined or specific enough to carry out their intent. Administrative rules are meant to fill this gap, and the Legislature regularly delegates authority to state departments to “promulgate rules” to define the details of how the law will function.[*]
An example may be helpful. In 1978, the Michigan Legislature passed a bill about outhouses. The law said that a person is not allowed to have an outhouse unless it “is kept in a sanitary condition, and constructed and maintained in a manner which will not injure or endanger the public health.” But the bill did not define either “sanitary condition” or “endanger[ing] the public.” Instead, the Legislature delegated the duty of defining these terms to an administrative agency, telling it to write rules “governing the construction and maintenance of outhouses to safeguard the public health and to prevent the spread of disease and the existence of sources of contamination.”
This state department then wrote a set of rules to define a legal outhouse. Outhouses, it determined, need to be “convenient and accessible to use,” made of material that does not rapidly deteriorate, vented, “located as to prevent the pollution of public and private water supplies, lakes or streams” and “fly-tight” — presumably meaning that insects cannot gain entrance. The department also provided specific rules for different types of outhouses — earth-pits, septic toilets and chemical closets — and defined the “minimum standards of maintenance” to keep outhouses in a legally allowed condition.
Administrative rules have the same force as law. Violating them is an illegal act, just as violating a state statute is an illegal one. But administrative agencies cannot assign a criminal penalty to a rule violation. Michigan law is clear on this point: “[A] rule must not designate an act or omission as a crime or prescribe a criminal penalty for violation of a rule.” However, the Legislature can decide to make it a crime to violate a rule created by an administrative body.
This, as it turns out, is the case for outhouses. The statute says that violating any of the rules it authorized to be written is a misdemeanor. Prescribing a criminal penalty for violating rules promulgated under a statute is sometimes referred to as a “catch-all,” because it applies a specific penalty to a broad range of rules. This practice is what enables government agencies to effectively define what constitutes criminal behavior.
[*] The phrase “promulgate rules,” a common one used to authorize an administrative agency to create rules, appears 766 times in Michigan statute. “Search Results,” Michigan Compiled Laws, https://perma.cc/S3DX-YQZC.