nondelegation doctrine in Michigan

2020The United States Supreme Court has “found the requisite ‘intelligible principle’ lacking in only two statutes, one of which provided literally no guidance for the exercise of discretion, and the other of which conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring ‘fair competition.’ ” Whitman, 531 US at 474 , citing Panama Refining Co v Ryan, 293 US 388 ; 55 S Ct 241 ; 79 L Ed 446 (1935), and Schechter Poultry Corp, 295 US 495 .

2020The United States Supreme Court has “found the requisite ‘intelligible principle’ lacking in only two statutes, one of which provided literally no guidance for the exercise of discretion, and the other of which conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring ‘fair competition.’ ” Whitman, 531 US at 474 , citing Panama Refining Co v Ryan, 293 US 388 ; 55 S Ct 241 ; 79 L Ed 446 (1935), and Schechter Poultry Corp, 295 US 495 .

2003Coffman v. State Bd. of Examiners in Optometry, 331 Mich. 582, 587-588 , 50 N.W.2d 322 (1951). [6] As we stated in People v. Turmon, 417 Mich. 638, 649 , 340 N.W.2d 620 (1983): "As a threshold matter, we recognize that some legislative powers are simply not delegable.

2003Coffman v. State Bd. of Examiners in Optometry, 331 Mich. 582, 587-588 , 50 N.W.2d 322 (1951). [6] As we stated in People v. Turmon, 417 Mich. 638, 649 , 340 N.W.2d 620 (1983): "As a threshold matter, we recognize that some legislative powers are simply not delegable.

2003A simple statement of this doctrine is found in Field v. Clark, 143 U.S. 649, 692 , 12 S.Ct. 495 , 36 L.Ed. 294 (1892), in which the United States Supreme Court explained that "the integrity and maintenance of the system of government ordained by the Constitution" precludes Congress from delegating its legislative power to either the executive branch or the judicial branch. [5] This concept has its roots in the separation of powers principle underlying our tripartite system of government. [6] Yet, the United States Supreme Court, as well as this Court, has also recognized "that the separation

2003A simple statement of this doctrine is found in Field v. Clark, 143 U.S. 649, 692 , 12 S.Ct. 495 , 36 L.Ed. 294 (1892), in which the United States Supreme Court explained that "the integrity and maintenance of the system of government ordained by the Constitution" precludes Congress from delegating its legislative power to either the executive branch or the judicial branch. [5] This concept has its roots in the separation of powers principle underlying our tripartite system of government. [6] Yet, the United States Supreme Court, as well as this Court, has also recognized "that the separation

2003The Court held the statute in violation of the nondelegation doctrine because it "unlawfully attempts to delegate to the United States post-office department the determination of the qualifications of a newspaper to publish legal notices." Id. at 454 , 49 N.W.2d 370 .

2003The Court held the statute in violation of the nondelegation doctrine because it "unlawfully attempts to delegate to the United States post-office department the determination of the qualifications of a newspaper to publish legal notices." Id. at 454 , 49 N.W.2d 370 .

2020“These constitutional provisions have led to the constitutional discipline that is described as the nondelegation doctrine.” Taylor v Gate Pharmaceuticals, 468 Mich 1, 8 ; 658 NW2d 127 (2003).

2020“These constitutional provisions have led to the constitutional discipline that is described as the nondelegation doctrine.” Taylor v Gate Pharmaceuticals, 468 Mich 1, 8 ; 658 NW2d 127 (2003).

2020See Mistretta, 488 US at 373 n 7 (discussing Panama Refining Co and ALA Schechter Poultry Corp); Blue Cross & Blue Shield of Mich v Milliken, 422 Mich 1 , 2 Gundy suggests that some members of the current United States Supreme Court are prepared to revisit the doctrine in a future case.

2020In evaluating legislative standards in the context of the nondelegation doctrine, our Supreme Court has explained that “(1) the act must be read as a whole; 2) the act carries a presumption of constitutionality; and 3) the standards must be as reasonably precise as the subject matter requires or permits.” Blue Cross & Blue Shield, 422 Mich at 51 .

2025In T & V Assoc, Inc v Dir of Health and Human Servs, 347 Mich App 486 ; 15 NW3d 313 (2023), the plaintiff, a catering service and banquet facility, sued the Department of Health and Human Services Director, arguing that her COVID-19 order limiting indoor food services was unlawful because the statute upon which the order was based, MCL 333.2253, violated the nondelegation doctrine.

2020Second, the Chief Justice suggests that we have “announced” a new principle as part of the nondelegation doctrine because, while caselaw from the United States Supreme Court and this Court “require some standards for the delegation of legislative authority,” such that “in theory, an inadequate standard would be insufficient,” “until today, the United States Supreme Court and this Court have struck down statutes under the nondelegation doctrine only when the statutes contained no standards to guide the decision-maker’s discretion.” However, it is not this majority that has “announced” any novel

2020Second, the Chief Justice suggests that we have “announced” a new principle as part of the nondelegation doctrine because, while caselaw from the United States Supreme Court and this Court “require some standards for the delegation of legislative authority,” such that “in theory, an inadequate standard would be insufficient,” “until today, the United States Supreme Court and this Court have struck down statutes under the nondelegation doctrine only when the statutes contained no standards to guide the decision-maker’s discretion.” However, it is not this majority that has “announced” any novel

2020Taylor v SmithKline Beecham Corp, 468 Mich 1, 8 ; 658 NW2d authority under the EPGA because the EPGA gives the governor alone the power to determine when an emergency has ended. -16- 127 (2003); Detroit v Detroit Police Officers Ass’n, 408 Mich 410, 458 ; 294 NW2d 68 (1980); Osius v St Clair Shores, 344 Mich 693, 698 ; 75 NW2d 25 (1956).

2020Taylor v SmithKline Beecham Corp, 468 Mich 1, 8 ; 658 NW2d authority under the EPGA because the EPGA gives the governor alone the power to determine when an emergency has ended. -16- 127 (2003); Detroit v Detroit Police Officers Ass’n, 408 Mich 410, 458 ; 294 NW2d 68 (1980); Osius v St Clair Shores, 344 Mich 693, 698 ; 75 NW2d 25 (1956).

2020“The preciseness of the -7- standards will vary in proportion to the degree to which the subject regulated requires constantly changing regulation.” Associated Builders & Contractors v Dep’t of Consumer & Industry Servs Dir (On Remand), 267 Mich App 386, 391 ; 705 NW2d 509 (2005).

2020“The preciseness of the -7- standards will vary in proportion to the degree to which the subject regulated requires constantly changing regulation.” Associated Builders & Contractors v Dep’t of Consumer & Industry Servs Dir (On Remand), 267 Mich App 386, 391 ; 705 NW2d 509 (2005).

2020The nondelegation doctrine-- the constitutional doctrine at issue in this case-- sets forth a foundational principle of our system of separated powers and checks and balances precisely because it acts in support of the logical proposition that just as no branch may act to breach the authority of another, so too may no branch act to breach its own authority by relinquishing it to another branch.22 And despite what is suggested by the Chief Justice, separation-of-powers disputes do not invariably give rise to something akin to a “political 22 “To what purpose are powers limited, and to what purp

2020The nondelegation doctrine-- the constitutional doctrine at issue in this case-- sets forth a foundational principle of our system of separated powers and checks and balances precisely because it acts in support of the logical proposition that just as no branch may act to breach the authority of another, so too may no branch act to breach its own authority by relinquishing it to another branch.22 And despite what is suggested by the Chief Justice, separation-of-powers disputes do not invariably give rise to something akin to a “political 22 “To what purpose are powers limited, and to what purp

2020As Justice Gorsuch stated, the core principle underlying the nondelegation doctrine—and one that is enshrined in our own Constitution, Const 1963, art 3, § 2—is that the Legislature simply may not “ ‘delegate . . . powers which are strictly and exclusively legislative.’ ” Gundy, 139 S Ct at 2133 (Gorsuch, J., dissenting), quoting Wayman v Southard, 23 US (10 Wheat) 1, 42-43; 6 L Ed 253 (1825).

2020Second, the Chief Justice suggests that we have “announced” a new principle as part of the nondelegation doctrine because, while caselaw from the United States Supreme Court and this Court “require some standards for the delegation of legislative authority,” such that “in theory, an inadequate standard would be insufficient,” “until today, the United States Supreme Court and this Court have struck down statutes under the nondelegation doctrine only when the statutes contained no standards to guide the decision-maker’s discretion.” However, it is not this majority that has “announced” any novel

2020It is enough to satisfy the statutory requirements that the Administrator finds that the prices fixed will tend to achieve that objective and will conform to those standards . . . . [Yakus, 321 US at 423 .] Thus, the standard in Yakus was not simply “fair and equitable” but also “prevailing prices during the designated base period” and “administrative adjustments to compensate for enumerated disturbing factors affecting prices.” And in Whitman, the United States Supreme Court considered a nondelegation challenge to § 109(b)(1) of the Clean Air Act (CAA), which “instructs the EPA to set ‘ambien

2020Taylor v SmithKline Beecham Corp, 468 Mich 1, 8 ; 658 NW2d authority under the EPGA because the EPGA gives the governor alone the power to determine when an emergency has ended. -16- 127 (2003); Detroit v Detroit Police Officers Ass’n, 408 Mich 410, 458 ; 294 NW2d 68 (1980); Osius v St Clair Shores, 344 Mich 693, 698 ; 75 NW2d 25 (1956).

2020Taylor v SmithKline Beecham Corp, 468 Mich 1, 8 ; 658 NW2d authority under the EPGA because the EPGA gives the governor alone the power to determine when an emergency has ended. -16- 127 (2003); Detroit v Detroit Police Officers Ass’n, 408 Mich 410, 458 ; 294 NW2d 68 (1980); Osius v St Clair Shores, 344 Mich 693, 698 ; 75 NW2d 25 (1956).

2020In Makowski v Governor, 495 Mich 465, 482-483 ; 852 NW2d 61 (2014), our Supreme Court provided some clarification regarding the nondelegation doctrine, explaining: While the Constitution provides for three separate branches of government, Const 1963, art 3, § 2, the boundaries between these branches need not be “airtight[.]” In fact, in designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute

2020In Makowski v Governor, 495 Mich 465, 482-483 ; 852 NW2d 61 (2014), our Supreme Court provided some clarification regarding the nondelegation doctrine, explaining: While the Constitution provides for three separate branches of government, Const 1963, art 3, § 2, the boundaries between these branches need not be “airtight[.]” In fact, in designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute

2020Second, the Chief Justice suggests that we have “announced” a new principle as part of the nondelegation doctrine because, while caselaw from the United States Supreme Court and this Court “require some standards for the delegation of legislative authority,” such that “in theory, an inadequate standard would be insufficient,” “until today, the United States Supreme Court and this Court have struck down statutes under the nondelegation doctrine only when the statutes contained no standards to guide the decision-maker’s discretion.” However, it is not this majority that has “announced” any novel

2020Second, the Chief Justice suggests that we have “announced” a new principle as part of the nondelegation doctrine because, while caselaw from the United States Supreme Court and this Court “require some standards for the delegation of legislative authority,” such that “in theory, an inadequate standard would be insufficient,” “until today, the United States Supreme Court and this Court have struck down statutes under the nondelegation doctrine only when the statutes contained no standards to guide the decision-maker’s discretion.” However, it is not this majority that has “announced” any novel

2020Second, the Chief Justice suggests that we have “announced” a new principle as part of the nondelegation doctrine because, while caselaw from the United States Supreme Court and this Court “require some standards for the delegation of legislative authority,” such that “in theory, an inadequate standard would be insufficient,” “until today, the United States Supreme Court and this Court have struck down statutes under the nondelegation doctrine only when the statutes contained no standards to guide the decision-maker’s discretion.” However, it is not this majority that has “announced” any novel

2020Second, the Chief Justice suggests that we have “announced” a new principle as part of the nondelegation doctrine because, while caselaw from the United States Supreme Court and this Court “require some standards for the delegation of legislative authority,” such that “in theory, an inadequate standard would be insufficient,” “until today, the United States Supreme Court and this Court have struck down statutes under the nondelegation doctrine only when the statutes contained no standards to guide the decision-maker’s discretion.” However, it is not this majority that has “announced” any novel

2020Second, the Chief Justice suggests that we have “announced” a new principle as part of the nondelegation doctrine because, while caselaw from the United States Supreme Court and this Court “require some standards for the delegation of legislative authority,” such that “in theory, an inadequate standard would be insufficient,” “until today, the United States Supreme Court and this Court have struck down statutes under the nondelegation doctrine only when the statutes contained no standards to guide the decision-maker’s discretion.” However, it is not this majority that has “announced” any novel

2020Second, the Chief Justice suggests that we have “announced” a new principle as part of the nondelegation doctrine because, while caselaw from the United States Supreme Court and this Court “require some standards for the delegation of legislative authority,” such that “in theory, an inadequate standard would be insufficient,” “until today, the United States Supreme Court and this Court have struck down statutes under the nondelegation doctrine only when the statutes contained no standards to guide the decision-maker’s discretion.” However, it is not this majority that has “announced” any novel

2003NOTES [1] The primary drugs at issue are dexfenfluramine (commonly known as Redux) and fenfluramine and phentermine (commonly referred to as fen-phen when taken together). [2] It is uncontested that the FDA approved the challenged drugs and their labeling before the drugs left the control of any defendant. [3] 248 Mich.App. 472 , 639 N.W.2d 45 (2001). [4] 466 Mich. 889 , 649 N.W.2d 72 (2002). [5] The nondelegation doctrine forbids the delegation of legislative powers, not only to the executive or judicial branches, but also to non-Michigan governmental agencies or to private individuals or ass

2003NOTES [1] The primary drugs at issue are dexfenfluramine (commonly known as Redux) and fenfluramine and phentermine (commonly referred to as fen-phen when taken together). [2] It is uncontested that the FDA approved the challenged drugs and their labeling before the drugs left the control of any defendant. [3] 248 Mich.App. 472 , 639 N.W.2d 45 (2001). [4] 466 Mich. 889 , 649 N.W.2d 72 (2002). [5] The nondelegation doctrine forbids the delegation of legislative powers, not only to the executive or judicial branches, but also to non-Michigan governmental agencies or to private individuals or ass

2002Miller v Dep’t of Treasury, 385 Mich 296, 313 ; 188 NW2d 795 (1971) (Brennan, J., dissenting).

2002Miller v Dep’t of Treasury, 385 Mich 296, 313 ; 188 NW2d 795 (1971) (Brennan, J., dissenting).