Many people know about the problem of overregulation, with governments consistently adding more rules aimed at controlling a larger portion of our lives. But that’s only the tip of the iceberg. A new report published by the Mackinac Center takes aim at one of the most serious consequences of overregulation: Unelected bureaucrats have the power to define criminal behavior.
This happens when the Legislature authorizes a government office or department to write and publish (“promulgate”) rules related to a law and then declare that anyone who violates the law or its related rules is guilty of a crime. Since regulators write the rules, this effectively means that they determine what is criminal activity and what is not. This is not how representative government is supposed to work, but it is a common practice with a long history.
There are, however, even more fundamental problems with letting administrative agencies define criminal behavior. One of those problems develops because many of Michigan’s administrative rules are outdated and incomprehensible. The study highlights several that are so outdated and miscategorized that it is impossible to know if they still apply, leaving people unsure of whether their behavior could be deemed illegal.
Other rules are poorly written, being either ill-defined or overly precise. Ill-defined or vague rules make it difficult for residents to know if the rule applies to them and if they satisfy it. These determinations must be left to a regulator, which subjects Michiganders to being made criminally liable to the whims of unelected bureaucrats. Overly precise rules, meanwhile, make compliance virtually impossible and enforcement equally so. Again, the end result is that unelected bureaucrats get to determine which rules really need to be followed and which ones need not be. This undermines the rule of law.
Allowing administrative rules to carry criminal sanctions empowers Michigan’s state bureaucracy in other ways. The study explains how state agencies can issue “variances,” which are authorized exceptions to certain rules. By issuing variances, regulators determine who gets a pass from following the rules. In some cases, state agencies also adjudicate their own rules, meaning that unelected bureaucrats decide when someone has violated a rule. So much for separation of powers.
Our new study goes into much more detail about this problem and offers several ways to begin remedying this issue. A thorough review of the existing administrative rules is a needed first step; the study unearthed many rules that were incorrectly labeled, outdated or confusing. Lawmakers should review the rules, and after they do so, take back their power to define criminal actions. This is a grave power and should be reserved for elected representatives.