The growth of the regulatory state — the unelected branch of U.S. government that writes and enforces legally binding rules — is well-documented. At the federal level, the Mercatus Center estimates that the Code of Federal Regulations has grown 2.5 times larger over the past 50 years. Regulations created at the state level also have grown. This creeping growth in administrative rules is harmful by itself, but an especially troubling element of this phenomenon is that members of Congress and state legislatures have handed over broad powers to unelected bureaucrats.
Not only do administrative agencies get to write the rules, they sometimes get to determine who has to abide by them. This happens through the use of variances — legal exemptions to regulatory rules. Because state agencies determine if variances will be allowed and who can have one, bureaucrats essentially decide who has to follow the law and who does not. For example, Michigan rules concerning public swimming pools say that a state agency may grant variances to any rule if “strict compliance will cause unusual practical difficulties and hardships.”
These variances should be concerning for several reasons. First, violating some rules can be a criminal offense. Since unelected bureaucrats, through variances, unilaterally determine when a rule must be followed, they have the power to determine if someone will be criminally liable. Determining who will be punished is one of government’s most grave powers, and it should be reserved for elected officials.
Second, variances increase the payoff for influencing regulators. Being granted a variance could result in a nice benefit for someone. Whenever it becomes more profitable to persuade a regulator to grant you a variance than it is to abide by the rule, we should expect regulators to be the target of at least some interest groups.
Granting variances is one thing, but regulatory bureaucrats have even broader powers in some cases. Consider the Michigan laws about cherry pests. This law was created in 1929, and its intent is to “protect the cherry industry” and “provide for the control of the cherry fruit flies and other cherry pests.” The rules require cherry farmers who have discovered an infected cherry tree to immediately do one of three things: burn the tree, spray it, or bury its fruit at least two feet deep.
But the rules go further. They state: “It is declared illegal for any person or persons operating any car, vessel, boat, truck, automobile, aircraft, wagon or other vehicle, to transport from one point to another within the state, cherries infested with the cherry fruit fly.” With this rule, state bureaucrats are making criminals out of anyone who moves an infected cherry tree, even if they do it unintentionally. Declaring an action illegal and punishable by criminal law is a power that should be reserved to voters’ direct representatives: Congress and state legislatures.
In some cases, legislative bodies hand over even broader powers to regulators. Take Michigan’s laws about commercial fishing. These laws dictate how Michigan’s Great Lakes can be fished and require commercial fishers to obtain licenses. The regulatory department overseeing this law is in charge of determining who can obtain a license and how many will be available.
But the statute also says: “[A]ny statute or law of this state governing commercial fishing may be suspended, abridged, extended, or modified by the department when, in the opinion of the department, that action is necessary.” Essentially, state bureaucrats have the same power as the Legislature. In fact, not even the governor of Michigan, with emergency powers, can unilaterally suspend or modify a state law such as this.
Although writing rules is a quasi-legislative function, some regulatory departments also are charged with adjudicating their own rules. Essentially, these agencies determine what the rules are and decide who has followed them or not. In other government contexts, these two powers — legislative and judicial — are intentionally kept separated among independent branches. But not when it comes to the regulatory state.
These are just a few examples of how the regulatory state provides unelected bureaucrats with powers that should be reserved for legislatures. It is hard to estimate the impact these rules have, but, nevertheless, lawmakers should rethink the concept of delegating these powers to regulators. The rule of law is weakened when unelected bureaucrats determine which laws apply and who has to follow them.
Michael Van Beek is director of research at the Mackinac Center for Public Policy, a research and educational institute headquartered in Midland, Mich.