As previously mentioned, the Administrative Procedures Act of 1969 provides a broad set of emergency powers to state agencies. The APA controls the rulemaking process departments must follow to create new regulations. Agencies may only create rules when explicitly empowered by state statute, and the APA establishes procedures that agencies must follow when they do this. Among other things, departments must submit proposed rules for legislative review, provide public notice and conduct a hearing.[54]
The APA enables state departments to skip the rulemaking process and immediately implement emergency rules. These rules can last up to six months and be extended for another six months. The decision of when to implement an emergency rule, as well as when to extend it, is left to the department.
As described in a previous section, the APA has a poorly defined trigger. The statute also has a weak scope of authority. It provides no clear guidance about what a department may do when issuing emergency rules.
That said, the scope of these emergency rules appear limited in the same way an agency’s conventional rules are. Departments may only write rules pertaining to subjects that the Legislature grants them authority to regulate. Typically, statutes identify the subject and purpose of the rules a department may promulgate. The APA makes this clear: “A rule must not exceed the rule-making delegation contained in the statute authorizing the rule-making.”[55]
Emergency rules appear to fall under the APA’s definition of a “rule.” The statute defines a rule as “an agency regulation, statement, standard, policy, ruling or instruction of general applicability that implements or applies law enforced or administered by the agency, or that prescribes the organization, procedure or practice of the agency.”[56] It then lists and excludes dozens of other agency actions from this definition.[57] Emergency rules are not listed as being excluded. Thus, like all other rules, emergency rules appear limited to issues which a department is statutorily authorized to regulate.
Some departments have broad authority to issue emergency rules under the APA. Many laws use far-reaching language when they grant departments the power to create rules. For example, the Michigan Department of Natural Resources is statutorily authorized to “promulgate rules to protect and preserve lands and other property under its control from depredation, damage or destruction.”[58] This broad grant of authority appears to empower the department to write rules about anything that might possibly cause damage to land — which is a long list, no doubt.
Similarly, the Michigan Department of Health and Humans Services is authorized by statute to “promulgate rules to safeguard properly the public health.”[59] What properly safeguarding the public health means is not defined. The health department could, seemingly, issue emergency rules about anything that it determines might conceivably affect “public health” — an undefined term. When a state department is bound only by nebulous concepts such as this, there appear to be few limits on how it could use emergency rules.
The Michigan Occupational Safety and Health Administration response to the COVID-19 pandemic provides an example of a state department stretching its authority to new heights when issuing emergency rules. MIOSHA’s unilaterally developed rules were unprecedented in their depth and breadth. They applied to every employer in the state. They required employers to conduct daily health screenings of every employee and keep records of these screenings. The department mandated that employers actively monitor their employees’ movements, require them to use personal protective equipment, train every employee and require employees and their customers to wear masks.[60]
No statute in Michigan law grants MIOSHA the power to regulate the transmission of respiratory viruses in workplaces, as the agency’s rules did. But the law empowering MIOSHA to issue rules contains broad language about its purpose. It defines its objective this way: “[A]ll employees shall be provided safe and healthful work environments free of recognized hazards.”[61] It goes on that employees must have “a place of employment that is free from recognized hazards that are causing, or are likely to cause, death or serious physical harm to the employee.”[62] It was this language that MIOSHA pointed to in justifying its power to issue emergency rules under the APA in response to the public health threat of COVID-19.[63]
Emergency rules issued under the APA are common. State departments issued 254 such rules from 1984 to 2021, according to Michigan’s Legislative Service Bureau.[64] That’s an average of nearly seven per year. But before the COVID-19 pandemic, they were being used less and less. Only 34 emergency rules were issued by state departments between 1998 and 2019, according to state records.