The Michigan Constitution divides the state government into three branches — legislative, executive and judicial. But administrative agencies have powers that blur these distinctions. They are technically part of the executive branch, and their fundamental purpose, therefore, is to enforce the law. But their powers go beyond that.
As has been demonstrated throughout this report, administrative agencies serve a legislative function, or at least a quasi-legislative one, by promulgating rules. This function is quasi-legislative because these agencies do not have all the same powers as the Legislature. For instance, the Legislature reserves for itself the right to define the criminal penalties for violations of rules, and the Legislature can also restrict the scope of the rules agencies can create.[*]
Sometimes, an agency has a wide range of legislative powers; at other times, it has less discretion. It all depends on the statute in question. Sometimes statutes clearly and specifically limit what rules an agency can promulgate. These might include limiting the rules to only defining the requirements someone must meet to obtain a state license or permit. In other instances, however, statutes provide departments with very broad legislative powers.
For example, the state law concerning the sale, ownership and use of off-road recreational vehicles seems to empower the state environmental department with expansive powers. There appears to be no limit on what kinds of rules it can write where ORVs are concerned. The statute states: “If the department finds that rules are necessary to implement the regulatory provisions of this part or to clarify the intent of this part, the department shall promulgate rules.” Violation of any of these rules can lead to a misdemeanor, up to 90 days in jail and a fine between $50 and $1,000.
While ORVs represent a narrow subject area, an agency can have expansive legislative powers over a broad amount of activity. The Food Law, for instance, regulates the “processing, manufacturing, production, packing, preparing, repacking, canning, preserving, freezing, fabricating, storing, selling, serving, or offering for sale food or drink for human consumption.” It devotes an entire chapter to specifying the powers and duties of the agriculture department to execute the law. One specified duty appears very broad: MDARD may write rules “fixing and establishing for any food or class of food a reasonable definition, standard of identity, and reasonable standard of quality and fill of container” whenever it “determines such action will promote honesty and fair dealing in the interest of consumers.” A violation of these rules is a misdemeanor, punishable by a fine of $250 to $2,500 and 90 days in jail.
Even though agencies cannot assign criminal penalties to rule violations, in some instance, agencies have the discretion to determine which penalty will apply when a state statute or administrative rule is violated. For instance, the Mobile Home Commission Act of 1987 allows a commission within a state agency to impose any one or combination of the following penalties: censure; probation; the limitation, suspension, revocation or denial of a license; a civil fine of up to $50,000; or restitution. In addition, anyone who violates a rule promulgated under the act commits a misdemeanor.
Some administrative agencies also have judicial powers, empowered to adjudicate their own rules. In other words, they can determine if someone is complying with a rule or not. Agency hearings can proceed like hearing in a standard courtroom, with judges, oral arguments, witnesses, cross-examinations, etc. After one of these hearings, an agency can force someone to comply with a rule and impose a penalty on them. Research by Thomas Shull on behalf the Mackinac Center estimated that more than 50% of agencies have statutory power to adjudicate their own rules in this or a similar manner.
[*] In fact, the Administrative Procedures Act of 1969 states this explicitly: “The violation of a rule is a crime if provided by statute. Unless provided by statute, a rule must not designate an act or omission as a crime or prescribe a criminal penalty for violation of a rule.” MCL § 24.232(3).