Study: Legislators Authorize Penalties, Unelected Bureaucrats Decide Where They Apply

A century of regulatory rule-making has created thousands of government mandates for private business and property owners in Michigan. In many cases, violators are subject to criminal sanctions, including prison.

The rules are intended to promote public safety and consumer protection, and set uniform standards for permissible conduct. But a new report from the Mackinac Center for Public Policy finds they are also fiendishly complex, sometimes contradictory, and often incomprehensible and unenforceable.

Their scale is also so vast that regulators, by necessity, have to exercise wide discretion in enforcement, said Michael Van Beek, author of the report and director of research for the Mackinac Center.

“The thing that is most concerning is how (over-regulation) undermines the rule and respect for the law. People should be able to understand what is legal and what is not,” he said.

According to a survey conducted for the Mackinac Center in 2016, Michigan has more than 750 sets of so-called administrative rules and over 17,000 individual rules under the jurisdiction of 150 state agencies.

In the new report, Van Beek found that some of the rules are incoherent. A set written in 1979 to regulate the sale of honey, for instance, requires that each container be labeled “white,” “amber” or “dark.” The authority for that regulation was ostensibly contained in a 1917 statute on “Marketing Conditions.”

Yet the report found that the statute in question applies to fruits and vegetables and is entirely silent on honey. Further, the rules themselves refer to a different statute altogether, one covering “Commercial Feed” regulation that was repealed in 1959.

Another law, passed in 2000 to standardize requirements for those who produce commercial products out of their homes, does actually contain specific mandates for labeling honey. It contains no mention of “white,” “amber” or “dark” varieties, however, the report found.

“All told...it is very difficult to determine the rules for producing and selling honey in Michigan and what the penalty might be for violation.”

The report found similarly conflicting and confusing regulations for the “importation” of dogs, and a welter of regulation for horse racing and race horses (most of them written for an industry that barely exists in Michigan today).

Other regulations mandate what can only be called minutiae, such as the precise size of signage used by liquor retailers. Some require regulators to double as mind readers; businesses selling mobile homes are forbidden to advertise that they will “never (be) undersold” unless the “statements are also true,” according to rules reviewed by Van Beek.

Elected legislators and governors authorize a range of penalties, including prison, for improper commercial behavior. But, the report said, they delegate to unelected and anonymous bureaucrats the power to write rules defining the prohibited behavior and absolve offenders by granting exemptions.

Van Beek said it is almost impossible to quantify the extent to which regulators actually impose or decline to seek criminal sanctions on violators. Some of the most heavily regulated activities — like workplace safety and environmental enforcement — don’t carry criminal penalties, he said.