c. Scope of delegation and legislative power in Michigan

One manner in which Michigan's administrative law differs from federal law is that Michigan has more stringent delegation standards, even if the exact contours of delegations permissible under Michigan's constitution are not clear. Unlike the federal courts, Michigan courts do not adhere to the intelligible-principle doctrine and require more standards before the Legislature may delegate power to an administrative agency.

In Westervelt v Natural Resources Commission, 402 Mich 412 (1978), this Court discussed delegation. Westervelt was a 3-3 decision. The lead opinion held that a delegation must meet two tests: (1) a separation-of-powers test, which requires "standards as reasonably precise as the subject matter of the legislation requires or permits"; and (2) a due-process test, which requires the presence of safeguards "assuring that the public will be protected against potential abuse of discretion at the hands of administrative officials." Id. at 444-45. The concurring three justices would review a delegation only under the separation-of-powers test, and would look at a potential due-process issue at a later time. Id. at 454 (Ryan, J., concurring).

Which of these opinions is correct has not been authoritatively settled, but in a recent remand order in DPG York, LLP v Michigan, 474 Mich 987 (2005), this Court cited Westervelt's footnote 20, which states:

    This emphasis on the "safeguards, including ‘standards' which the legislation affords" in order to best effectuate the due process foundation of the "delegation doctrine" echoes the judicial approach argued by Professor Davis:

    The non-delegation doctrine can and should be altered to turn it into an effective and useful judicial tool. Its purpose should no longer be either to prevent delegation of legislative power or to require meaningful statutory standards; its purpose should be the much deeper one of protecting against unnecessary and uncontrolled discretionary power. The focus should no longer be exclusively on standards; it should be on the totality of protections against arbitrariness, including both safeguards and standards. The key should no longer be statutory words; it should be the protections the administrators in fact provide, irrespective of what the statutes say or fail to say.

Davis, Administrative Law Treatise, 1970 Supplement, pp. 40-41.

    See also Justice Levin's dissenting opinion in [People v Fields, 391 Mich 206, 231-32 (1974)].

    We wish to emphasize that this approach best effectuates the due process foundation of the delegation doctrine, i. e. the "standards test" as it has evolved in our jurisprudence no longer in itself assures due process protection. However, Professor Davis in his commentary, does not consider the "standards test" in terms of the "separation of powers" constitutional foundation of the "delegation doctrine." As we have carefully ruled, the "standards test" is an effective means for assuring that the constitutional "separation of powers" is maintained vis-a-vis a particular delegation of power to an administrative agency.

Thus, while the exact contours are not known, it is clear that the Michigan delegation test is more stringent than the federal test.

Related to the standards test is this Court's definition of what constitutes legislative power that cannot be delegated. In Blank v Department of Corrections, 462 Mich 103 (2000), this Court stated that "Policy determinations are fundamentally a legislative function." Id. at 116. General language may be used in the authorizing statute only so "long as the exact policy is clearly made apparent." Id. at 126 (internal citation omitted).[10]

The United States Supreme Court justified the deferential Chevron standard of review in large part because it did not want to become enmeshed in policy decisions. But such entanglement is far less of a concern in Michigan, since this Court does not allow the nearly limitless delegations prevalent in the federal system and thus avoids the subject of what a policy "should" be. This Court instead tries to deal with policy as it is - in other words, with the policy as set forth in legislative statute. By not allowing major policy questions to reach the agencies unless clear standards are provided, this Court avoids the risk of substituting its policy viewpoints for that of the agencies. And because the Michigan agencies must receive a clearer dictate from the Legislature than do their federal counterparts, it makes sense for the Michigan courts to hold the Michigan agencies to those dictates. In short, the federal courts must defer to agencies because oftentimes there are no standards limiting delegation, while in Michigan such deference is improper because those standards exist.

[10] Professor Pierce indicates that the United States Supreme Court used a similar test - that agencies could only fill in details and not make major policy decisions­­ - during the period between its decision in United States v Grimaud, 220 US 506 (1911) and its decision in Hampton & Co v United States, 276 US 394, 409 (1928), where the court first set out the easier-to-satisfy intelligible-principle test. 1 Pierce, Administrative Law Treatise (4th ed. 2002) § 2.6, pp 90-91.