The Major Questions Doctrine in Michigan

This article is the third in a State Court Report series on the major questions doctrine in the states. The first two in the series can be found here and here.

Michigan is among the growing number of states whose courts have considered adopting the “major questions doctrine,” the controversial interpretive tool integral to a pair of recent U.S. Supreme Court decisions. The doctrine directs courts to require “clear congressional authorization” before permitting agencies to exercise authority over matters of great economic and political significance. When the doctrine applies, agencies are presumed not to have power to regulate unless Congress has clearly stated its intention to vest agencies with the authority they claim.

Taking its lead from the U.S. Supreme Court, a Michigan appellate court recently considered the application of the major questions doctrine to a state statute. In ABC of Michigan v. DTMB, the court considered whether a state agency was authorized to adopt a regulation implementing a wage policy when a statute implementing that same policy had explicitly been repealed.

The case concerned a longstanding statute requiring state contractors to pay their workers the prevailing wage in the locations where they worked. This prevailing wage statute, designed to ensure that workers on state projects were paid in line with local pay rates, was repealed in 2018. Then, in 2021, Michigan’s Department of Technology, Management, and Budget issued an administrative rule reimposing the prevailing wage policy. Although the rule was drawn more narrowly than the repealed statute, it accomplished the same goal.

The Michigan court considered whether the agency’s adoption of a rule implementing the same policy as a repealed statute violated the state’s nondelegation doctrine, which is meant to prevent agencies from exercising legislative power.

Equating the constitutional question of nondelegation with the statutory major questions doctrine, the court held that statutory language authorizing agency action must be especially precise when an agency claims the power to resolve a matter of great political or economic significance. The court found that the case did not present a major question — and, therefore, the doctrine’s exacting requirements did not apply — because the record did not show that the agency’s wage rule had a “significant economic impact across the state.” The court then concluded that the rule did not run afoul of the nondelegation doctrine.

ABC’s conflation of the nondelegation doctrine with the major questions doctrine is unusual. Although most commentators agree that the nondelegation doctrine and major questions doctrine spring from a common concern with overbroad delegations, these two doctrines are not coextensive, at least not in the federal courts. Indeed, at the federal level, the Supreme Court seems to have adopted the major questions doctrine as an alternative to nondelegation, specifically because the nondelegation doctrine is famously moribund.

Another unusual, but admirable, feature of ABC is the court’s effort to identify whether the major questions doctrine was warranted for this particular situation rather than simply assuming its applicability. Since its introduction by the U.S. Supreme Court, federal and state courts alike have begun to apply the major questions doctrine, often without carefully considering whether the statutory scheme in question justifies the application of the doctrine. In ABC, by contrast, the court identified a triggering condition for the major questions doctrine, economic impact. Finding that the record lacked evidence of economic impact, the court accordingly rejected the application of the major questions doctrine to the agency’s policy.

Less auspicious was the court’s unexamined assumption that the major questions doctrine was appropriate under Michigan state law in the first place. Quoting the U.S. Supreme Court, the Michigan court described the emerging major questions doctrine as a principle dealing with the problem of “agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.”

But, even if the major questions doctrine is justified for the interpretation of federal statutes and regulations (a contested proposition), that does not mean that the doctrine is justified for state statutes and regulations. Because Michigan’s institutional structures differ from those of the federal government, the Michigan court should have examined Michigan’s institutions to assess the suitability of the major questions doctrine. In a previous State Court Report article, I argued that a state court contemplating the adoption of the major questions doctrine should consider state law, including the way its institutions share policymaking authority and the way its courts interpret statutes. I describe this framework in more detail in the Washington University Law Review article, “The Major Questions Doctrine in the States.”

Here, the major questions doctrine is an uncomfortable fit with some, though not all, salient features of Michigan state law. First, a significant assumption justifying the major questions doctrine — that Congress is expected to make all major policy decisions — is not well-supported in Michigan, which has robust voter initiative and referendum processes. The presence of these alternative routes to lawmaking undermines the claim that the Michigan legislature is expected to have a monopoly on legislative power.

Second, Michigan Democrats have a “trifecta” — that is, Democrats control both chambers of the legislature and the governor’s mansion. The presence of trifecta conditions means that the Michigan legislature can overturn an agency’s assertion of authority if it so chooses. And indeed, Michigan Democrats have used this trifecta power to advance a wide range of policy goals. Accordingly, Michigan’s trifecta conditions allow the political branches to police administrative overreach without the need for the kind of extraordinary judicial oversight that might justify the major questions doctrine at the federal level.

Third, and cutting in the opposite direction, Michigan is near the top of the list of states in terms of legislative professionalization, a measurement of the extent to which members of the legislature, and the legislature as a whole, have the capacity to participate in the process of policymaking. The major questions doctrine makes the most sense for a legislature — like Congress — that is highly professionalized, giving it the institutional capacity to contribute robustly to the policymaking process. Although certainly less professionalized than Congress, Michigan is among the more professionalized states according to one well-accepted measure, considering factors like number of session days, member salaries, and staff resources.

Fourth, the interpretive commitments of Michigan’s courts send mixed signals for the propriety of the major questions doctrine. Courts that strongly adhere to textualism should be less inclined to adopt the major questions doctrine because textualism is a poor fit with the doctrine’s willingness to discount plain statutory text in favor of assumptions about legislative intent. The Michigan courts’ commitment to textualism is mixed, relying at times on textualist-coded tools — like dictionaries and corpus linguistics analysis — but also routinely considering evidence of legislative purpose.

More definitively, Michigan courts review agency interpretations of statutes de novo. Because such a review precludes courts from putting a thumb on the interpretive scale when determining statutory meaning, it is inconsistent with the major questions doctrine, which directs courts to favor heightened scrutiny when construing agency authority.

In sum, the Michigan court should be commended for considering whether a predicate condition for applying the major questions doctrine existed before it reflexively applied the doctrine. But the court made a misstep by assuming that Michigan’s institutional structure justifies the doctrine in the first place. When the Michigan Supreme Court has occasion to consider the applicability of the major questions doctrine, it should pause to consider the differences between Michigan’s institutions and those of the federal government.

Evan C. Zoldan is a professor of law researching and teaching legislation, administrative law, and civil procedure. He is also a coauthor of a casebook on state and local government law.