The big-government regulatory
state is in full flower in Michigan, and almost every month legislators expand
it by delegating new rule-making powers to executive branch agencies.
But a bill to levy wastewater and
stormwater discharge fees on industries and municipalities is a welcome
exception to this trend. As passed by the Senate and House earlier this month,
Senate Bill 252 denies the Michigan’s Department of Environmental Quality (DEQ)
the power to make new water pollution rules without specific legislative
In debate over the bill, Senate
Majority Leader Ken Sikkema, R-Wyoming, spoke in terms that could be applied to
lawmaking across the board. "This Legislature . . . should never ever again be
cavalier about giving an agency rule-making authority. This agency [the DEQ] is
out of control. We should never ever again just carte blanche give them
Since the Progressive Era of a
century ago, the primary vector for the expansion of government power has been
administrative law, which Supreme Court Justice Felix Frankfurter described in
1927 as "this illegitimate exotic."
Americans are taught in
grade-school civics classes that government powers are separated into
legislative, executive, and judicial branches. But since legislatures have
delegated so much of the technical aspect of governing to executive branch
bureaucracies, this is no longer true. By now, we have become so habituated to
the rule-making regulatory state that legislators rarely think twice about
surrendering their authority to executive branch departments.
They do this by passing laws that
establish generalized goals, such as "preventing water pollution," and then
giving an executive agency the authority to make and enforce specific rules to
accomplish the goal. The administrative rules created by the agency have the
force of law, even though no legislature has voted on them, and though the
people elected none of the bureaucrats who created them.
The resulting body of
administrative law violates the separation of powers by effectively giving one
branch of government (the executive branch) the power to make the laws, enforce
them, and pass judgment on offenders. Violators found guilty in hearings before
administrators may have the right to appeal to the real judicial branch
of government. But in fact, the judiciary rarely overturns administrative law
decisions, and only those defendants with deep pockets have the resources to
Even worse, because administrative
law prosecutions are civil cases, the protections afforded to criminal
defendants are absent. Rather than imposing the familiar "beyond a reasonable
doubt" standard of proof, defendants are held liable if "a preponderance of the
evidence" leans against them.
Finally, as Mackinac Center Adjunct Scholar and
former Michigan legislator Stephen P. Dresch wrote in an
article on regulation in 2000, civil law "turns the general tenets of
Anglo-Saxon common law on their heads."
"Subjected to regulation,
an act is ‘legal’ only when permitted by the state’s regulators, whose
permission can be conditioned on the petitioner’s fulfillment of requirements
ostensibly designed to prevent or minimize potential harm. A failure to obtain
the regulators’ permission or to comply with the conditions imposed by the
regulators subjects the unfortunate violator to prosecution. In criminal law an
act is permitted unless it is explicitly declared, by statute or common law, to
be illegal. In the regulatory state, in contrast, an act, although ‘legal,’ is
impermissible unless the regulators have explicitly granted the prospective
actor permission to engage in it."
In other words, as in the old Soviet Empire, under civil regulatory law "all that is not explicitly permitted is forbidden." This is the very opposite of the idea of political liberty as conceived by the founding fathers of the United States. While there is much justifiable concern about excessive government spending at both the state and federal levels, a regulatory state is arguably more of a threat to liberty than an expensive one.
Both the Michigan Legislature and Congress need to recognize that neither the Michigan Constitution nor the federal version entrust the lawmaking function of government to nameless bureaucrats in executive agencies. In a republic this power is granted by means of popular elections exclusively to legislative bodies. As Sikkema said in his Feb. 10, 2004 floor statement, "The Constitution of this state doesn't charge the Department of Environmental Quality with protecting the environment. Let me read the Constitution: ‘The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction.’ It is our job, not theirs. We will decide what authority they have, not them."
Note: Jack McHugh is
legislative policy analyst for the Mackinac Center for Public Policy, a research
and educational institute headquartered in Midland, Mich.