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By Derk Wilcox
The Mackinac Center Legal Foundation recently lost a case but still won a long-term victory. The Michigan Court of Appeals ruled against us in a case that became moot when the Legislature acted. In its ruling, however, the court announced that it was following the major questions doctrine, which is associated with Clarence Thomas and the originalist members of the U.S. Supreme Court.
One of the most pressing problems of government today is that many of our laws can be made by unelected bureaucrats. At all levels of government, administrative agencies make most of the laws that we must obey. In 2023, federal agencies enacted 46 rules for every law enacted by Congress and the president, according to the Competitive Enterprise Institute.
Defenders of these administrative laws say they deal with matters too complicated for the democratic process. But national and state constitutions require legislatures, not agencies, to write the laws that govern us, no matter how complicated the topic.
Our system of government relies on the separation of powers. The legislative branch writes the laws, the executive branch enforces them, and the judicial branch settles disputes about the meaning of the laws. This system keeps power from being consolidated in the hands of one branch. Administrative law, however, shares power between the branches and allows an agency to police itself without answering to the courts or the electorate. Under the major questions doctrine, legislators and courts, not agencies, have final say on rules and regulations with large economic impacts.
The problem of unaccountability is a national one. But thanks to the Mackinac Center and this Court of Appeals ruling, the judicial branch has kept the administrative state in check. The Legal Foundation persuaded our courts to follow the major questions doctrine. The United States Supreme Court has adopted this doctrine in a series of opinions, striking down major changes to laws by administrative bureaucracies. Examples include agencies forgiving student loans, treating nicotine as an FDA-controlled drug, and restructuring the electric grid to fight climate change.
Supporters of the administrative state have reacted to this doctrine with alarm. The New York Times legal columnist dubs it “the doctrine that threatens Biden’s agenda.”
The Court of Appeals announcement is another of many victories by the Mackinac Center Legal Foundation in our fight against the governmental overreach that is inevitable when administrative bureaucracies make laws. The Legal Foundation persuaded the courts that the governor’s emergency orders during COVID were unconstitutional. Before that, we persuaded the Michigan Supreme Court to adopt the policy that courts need not defer to administrative agencies’ interpretations of ambiguous statutes.
Michigan is now the first state to recognize and follow the major questions doctrine. This shows the power of challenging government overreach in the courts. Even when the Legal Foundation lost a battle, we still won a major victory.
