Senate Majority Leader Sharply Condemns Regulatory Agency Power

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 authority.

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 rule-making authority."

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 try.

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.