Blank v. Department of Corrections

611 N.W.2d 530, 462 Mich. 103

• Court: Michigan Supreme Court
• Decided: June 20, 2000
• Docket: 109477, Calendar No. 8
• Status: Published

Opinions

Kelly, J.

We granted leave in this case to review a 1997 Court of Appeals decision¹ in which that Court held unconstitutional §§45 and 46 of the Administrative Procedures Act² (apa). I would affirm in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1977, the Legislature enacted an amendment to the apa. It required administrative agencies to obtain the approval of a joint committee of the Legislature or the Legislature itself before enacting new administrative rules. The statute now states in relevant part:

(8) If the committee approves the proposed rule within the time period provided by subsection (6), the committee shall attach a certificate of its approval to all copies of the rale bearing certificates except 1 and transmit those copies to the agency.

(9) If, within the time period provided by subsection (6), the committee disapproves the proposed rule or the committee chairperson certifies an impasse after votes for approval and disapproval have failed to receive concurrent majorities, the committee shall immediately report that fact to the legislature and return the rule to the agency. The agency shall not adopt or promulgate the rale unless 1 of the following occurs:

(a) The legislature adopts a concurrent resolution approving the rale within 60 days after the committee report has been received by, and read into the respective journal of, each house.

(b) The committee subsequently approves the rale.

(10) If the time permitted by this section expires and the committee has not taken action under either subsection (8) or (9), then the committee shall return the proposed rules to the agency. The chairperson and alternate chairperson shall cause concurrent resolutions approving the rale to be introduced in both houses of the legislature simultaneously. Each house of the legislature shall place the concurrent resolution directly on its calendar. The agency shall not adopt

. or promulgate the rule unless 1 of the following occurs:

(a) The legislature adopts a concurrent resolution approving the rale within 60 days after introduction by record roll call vote. The adoption of the concurrent resolution requires a majority of the members elected to and serving in each house of the legislature.

(b) The agency resubmits the proposed rale to the committee and the committee approves the rale within the time permitted by this section.

* * *

(12) If the committee approves the proposed rale within the time period provided by subsection (6), or the legislature adopts a concurrent resolution approving the rale, the agency, if it wishes to proceed, shall formally adopt the rule pursuant to any applicable statute and make a written record of the adoption. Certificates of approval and adoption shall be attached to at least 6 copies of the rule. [MCL 24.245; MSA 3.560(145).]

An agency shall not file a rule . . . until at least 10 days after the date of the certificate of approval by the committee or after the legislature adopts a concurrent resolution approving the rule. [MCL 24.246(1); MSA 3.560(146)(1).]

Governor Milliken promptly requested an advisory opinion on the constitutionality of the amendments, but this Court declined, stating; “The Court stands ready to examine carefully, and to resolve expeditiously, any controversy that comes to it out of application of 1977 PA 108 in a factual setting.” Request for Advisory Opinion on Constitutionality of 1977 PA 108, 402 Mich 83, 87; 260 NW2d 436 (1977). That opportunity is now before us.

In 1995, the Department of Corrections (DOC) proposed a series of administrative rules that limited the number and type of persons who could visit a prison inmate. Doc then submitted its proposed rules to the Joint Committee on Administrative Rules (jcar). At public hearings before jcar, prisoner rights groups, prisoners’ relatives, and other interested persons expressed vigorous opposition to the proposed rules. Jcar did not approve the rules and scheduled more hearings.

Doc then withdrew the proposed rules from jcar and adopted them without jcar’s approval. Doc forwarded the rules to the Governor and the Office of Regulatory Reform, which, in turn, sent them to the Secretary of State. The rules then became effective without a certificate of legislative or jcar approval.

In the wake of these events, prison inmates brought actions in the Jackson and Ingham Circuit Courts, challenging the validity of the new visitation rules. They asserted that DOC had enacted the rules in violation of the legislative oversight provisions of the apa and that the rules were unconstitutional. Both courts denied relief.

After consolidating the two cases, the Court of Appeals affirmed. It held that §§45 and 46 of the apa are unconstitutional and void. The procedures they establish, that effectively empower jcar to veto administrative rules, fail to satisfy the enactment and presentment requirements of the Michigan Constitution.³ 222 Mich App 397-398.

The panel went on to hold that the authority granted to JCAR violates the doctrine of separation of powers. It contains no provision for presentment to the Governor for approval of the Legislature’s veto of a rule. Id. at 398. The panel’s holding severed §§45 and 46 from the APA and rendered them void. Id. at 402. In addition, the Court of Appeals found doc’s new visitation rules valid and enforceable. They were promulgated in compliance with doc’s enabling statute, as well as with the procedures enunciated in the apa. Id.

We granted leave. 459 Mich 879 (1998).

II. ANALYSIS

A. CONSTITUTIONALITY OF PARTS OF §§ 45 AND 46

The first issue before us is whether §§45 and 46 of the apa violate the Michigan Constitution by requiring that a joint legislative committee, or the Legislature itself, approve new administrative rules. In making this determination, I recognize that we exercise our power to declare a statute unconstitutional only when the violation is clear. Gauthier v Campbell, Wyant & Cannon Foundry Co, 360 Mich 510, 515; 104 NW2d 182 (1960). We review the constitutionality of statutes de novo. McDougall v Schanz, 461 Mich 15; 597 NW2d 148 (1999).

The Michigan Constitution contains a provision that separates the powers of the state among three branches of state government. It provides:

The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution. [Const 1963, art 3, § 2.]

The Michigan Constitution vests the legislative power in the Senate and the House of Representatives. Const 1963, art 4, § 1. The constitution provides that “[n]o bill shall become law without the concurrence of a majority of the members elected to and serving in each house.” Const 1963, art 4, § 26. In addition, “[e]very bill passed by the legislature shall be presented to the governor before it becomes law . . . .” Const 1963, art 4, § 33. These provisions of Const 1963, art 4, are the enactment and presentment requirements of the Michigan Constitution.⁴

The Legislature’s statutory delegation of authority to executive branch agencies to adopt rules and regulations consistent with the purpose of the statute does not violate the separation of powers provision. Coffman v State Bd of Examiners in Optometry, 331 Mich 582; 50 NW2d 322 (1951); In re Quality of Service Standards for Regulated Telecommunications Services, 204 Mich App 607; 516 NW2d 142 (1994). The issue here is whether the Legislature, upon delegating such authority, may retain the right to approve or disapprove rules proposed by executive branch agencies.⁵

The United States Supreme Court has ruled that such oversight is not permissible because of the bicameralism and presentment requirements of the federal constitution. Immigration & Naturalization Service v Chadha, 462 US 919, 956; 103 S Ct 2764; 77 L Ed 2d 317 (1983). In Chadha, the Court addressed the constitutionality of a resolution passed by the United States House of Representatives pursuant to § 244(c)(2)⁶ of the Immigration and Nationality Act, 8 USC 1101 et seq. The resolution overrode the Attorney General’s decision to suspend the deportation of an individual.

The Court found that the House of Representatives’ action was inherently legislative in nature. For support, the Court made four observations. First, the action “had the purpose and effect of altering . . . legal rights, duties and relations of persons . . . outside the legislative branch.” Id. at 952. Second, the action supplanted legislative action. The only way the House could have obtained the same result would have been by enacting legislation. Id. at 952-954. Third, the House’s action involved determinations of policy. Id. at 954-955. Fourth, the constitution explicitly authorizes only four instances where one house of Congress can act alone. It does not include the authority for one house to exercise a legislative veto over duly authorized actions of the executive branch. Id. at 955-956.

The Court then held § 244(c)(2) unconstitutional, because it authorized a house of Congress to exercise legislative power without adhering to the Enactment and Presentment Clause of the United States Constitution.⁷ Id. at 958. The Court held that the House had exercised legislative power without the approval of the Senate and presentment to the President. By that action, it had violated the bicameralism and presentment requirements of the federal constitution and eroded the “carefully defined” separation of powers. Id. at 957-958.

1. CHADHA APPLIES TO THIS CASE

We have the discretion to interpret or apply a provision in our state constitution differently than the United States Supreme Court has done with a parallel provision of the federal constitution. Doe v Dep’t of Social Services, 439 Mich 650, 674, n 31; 487 NW2d 166 (1992). However, here, I find the United States Supreme Court’s reasoning in Chadha persuasive and applicable to the Michigan Constitution.

Petitioners argue that Chadha should not be applied to this case. They note that Chadha stands for the proposition that it is improper for Congress to delegate authority to an executive branch agency, then let one house summarily override that authority. Petitioners assert that this case differs in that, here, the Legislature is not withdrawing any authority. Instead, it is conditioning its delegation of authority on the agency’s compliance with apa mandates, including jcar review.

I disagree. The Legislature passed and the Governor signed the legislation that delegated to DOC the authority to promulgate rules. MCL 791.206; MSA 28.2276. If the Legislature or jcar invalidates a rule proposed by DOC, it effectively overrides the authority the Legislature has delegated to doc. In essence, pursuant to §§ 45 and 46, the Legislature has the power to render illusory its delegation of rulemaking authority. Therefore, I find that the provisions of the apa at issue in this case are similar to the legislative veto struck down in Chadha.

2. SECTIONS 45 AND 46 OF THE APA AUTHORIZE LEGISLATIVE ACTION

When applying Chadha to this case, I find that the action of JCAR or the Legislature in exercising the authority granted by §§ 45 and 46 of the apa is inherently legislative. Therefore, it is subject to the enactment and presentment requirements of the Michigan Constitution. My conclusion is based on the facts of this case.

First, if jcar or the Legislature can block the implementation of doc rules, it has the power to alter the rights, duties, and relations of parties outside the legislative branch. The Legislature assigned to the director of doc the duty to supervise and control the doc. MCL 791.203; MSA 28.2273. It also delegated to the director the authority to promulgate rules for “[t]he management and control of state penal institutions.” MCL 791.206(l)(d); MSA 28.2276(l)(d). Consistent with that statutory assignment and delegation, doc promulgated the rules at issue in this case. If enforced, the authority of JCAR or the Legislature to block implementation of the rules would effectively interfere with the duty of the director to administer the department. By affecting the duty of the doc director, who is an individual outside the legislative branch, the action becomes legislative in nature. Chadha, supra at 952.

Second, jcar’s failure to approve the rules promulgated by doc involves policy determinations. Policy determinations are fundamentally a legislative function. American States Ins Co v DAIIE, 117 Mich App 361, 367; 323 NW2d 705 (1982). Jcar conducted hearings on the proposed rules. During the hearings, it took testimony and received comments from prisoner rights groups, prisoners’ relatives, and other interested parties. After the hearings, jcar did not approve the rules. Instead, it scheduled another hearing. I do not know to a certainty the rationale behind its failure to approve the rules. However, I reasonably can infer that JCAR considered the testimony and comments received at the hearings. Those deliberations equate to consideration of the inevitable policy issues that surrounded the proposed rules.

Third, jcar’s action in failing to approve the rules proposed by doc is inherently legislative in nature, because it supplants other legislative methods for reaching the same result. If jcar lacked its statutory authority, then the only way that the Legislature could influence the promulgation of the rules would be to enact new legislation. Therefore, I find that the authority vested in jcar and the Legislature by §§ 45 and 46 of the apa is, in essence, the authority to perform legislative acts.⁸

3. MICHIGAN’S CONSTITUTIONAL PROVISIONS LIMIT THE LEGISLATURE FROM ACTING UNILATERALLY UNDER §§ 45 AND 46 OF THE APA

I have considered the amicus curiae brief of the Michigan State Employees Association. It notes that the Michigan Constitution, unlike its federal counterpart, is a limitation on the Legislature’s power, not a grant of power to it. Advisory Opinion on Constitutionality of 1976 PA 240, 400 Mich 311, 317-318; 254 NW2d 544 (1977). Absent a limitation in the Michigan Constitution, “the Legislature has the power to legislate within a particular field.” Federated Publications v MSU Bd of Trustees, 460 Mich 75, 83; 594 NW2d 491 (1999). Therefore, the msea asserts, there is no constitutional limitation on the Legislature’s authority to approve or disapprove proposed agency rules.⁹ Petitioners support that argument. They point out that the constitution expressly furnishes to jcar the authority to suspend the implementation of proposed agency rules when the Legislature is not in session, without gubernatorial approval. Const 1963, art 4, § 37.¹⁰

That the Michigan Legislature may legislate absent constitutional limitations does not mean that it may wield legislative power in a manner other than that carefully prescribed by the Michigan Constitution. As demonstrated above, the action of JCAR or the Legislature in approving or disapproving the rules that agencies have proposed is in essence legislative action. To determine the propriety of such action I consider the separation of powers provision. I consider, as well, the provisions vesting executive power in the Governor, judicial power in “one court of justice,” and legislative power in the House and Senate. When the Legislature engages in “legislative action” it must do so by enacting legislation. Failure of JCAR or the Legislature to do so violates the enactment and presentment requirements, usurps the Governor’s role in the legislative process, and violates the separation of powers provision. Thus, in this case, the separation of powers provision and the enactment and presentment requirements act as expressed limitations on the power of JCAR and the Legislature. I conclude that the Legislature cannot circumvent the enactment and presentment requirements simply by labeling or characterizing its action as something other than “legislation.”

Furthermore, I find that § 37 of article 4 does not support petitioners’ position. First, § 37 grants the Legislature the independent authority to temporarily suspend the implementation of a rule promulgated by an administrative agency between regular legislative sessions; § 37 does not grant it the authority permanently to block implementation of a rule. Indeed, a fair reading of § 37 of article 4 suggests that it serves merely as a stopgap measure. It prevents a proposed rule promulgated between legislative sessions from taking effect before the Legislature has had the opportunity to respond by enacting legislation.

Second, I infer from the limited grant of independent authority in § 37 of article 4 that the people of Michigan intended to restrict the Legislature’s power over agency rulemaking. The enactment and presentment requirements, as well as the separation of powers provision, restrict that power.

I conclude that, in this case, a committee of the Legislature acted in an inherently legislative manner without adhering to the enactment and presentment requirements of the constitution. Const 1963, art 4, §§ 1, 22, 26, 33. As a consequence, it violated Michigan’s Separation of Powers Clause. Const 1963, art 3, §2.

My holding is consistent with the decisions of the majority of other jurisdictions that have considered this issue. The high courts of eight different states have declared that legislative oversight of executive branch rulemaking is unconstitutional. Alaska v ALIVE Voluntary, 606 P2d 769 (Alas, 1980); State ex rel Stephan v Kansas House of Representatives, 236 Kan 45; 687 P2d 622 (1984); Opinion of the Justices, 121 NH 552; 431 A2d 783 (1981); New Jersey General Assembly v Byrne, 90 NJ 376; 448 A2d 438 (1982); State ex rel Barker v Manchin, 167 W Va 155; 279 SE2d 622 (1981); Missouri Coalition for the Environment v Joint Committee on Administrative Rules, 948 SW2d 125 (Mo, 1997); Gilliam Co v Oregon Dep’t of Environmental Quality, 316 Or 99; 849 P2d 500 (1993), rev’d on other grounds sub nom Oregon Waste Systems, Inc v Oregon Dep’t of Environmental Quality, 511 US 93; 114 S Ct 1345; 128 L Ed (1994); Legislative Research Comm by and through Prather v Brown, 664 SW2d 907 (Ky, 1984). The courts varied in their reasoning but uniformly resolved that oversight provisions violated the Enactment and Presentment Clauses or the separation of powers provisions in the states’ constitutions.

The high courts of two states have decided the matter differently. In Martinez v Dep’t of Industry, Labor & Human Relations,¹¹ the Wisconsin Supreme Court upheld a statute that authorized a joint committee to suspend the implementation of administrative rules pending bicameral legislative review and presentment to the governor. There, the legislature can permanently block the promulgation of agency rules only through a legislative act that complies with constitutional requirements of the state constitution. Michigan’s apa has no similar provision.

In Mead v Amell,¹² the Idaho Supreme Court agreed with the dissent in Chadha. It held that the legislature could constitutionally reject agency-promulgated rules on the basis of a concurrent resolution adopted by each house. The court stated that Idaho’s executive branch agencies were not executing the law by promulgating rules. Id. at 667. Rather, it reasoned, the agencies were acting according to a legislative delegation of power. Agency rulemaking lacked the constitutional protection from legislative oversight that other inherently executive activities enjoyed. Id. Therefore, it was constitutional for the legislature to override agency rulemaking activities without adhering to the formality of the enactment and presentment requirements of the Idaho Constitution. Id., citing Chadha, supra at 986-987.

I decline to follow Mead, because the Idaho court failed to recognize that passing a resolution to override rules promulgated by an executive branch agency is an inherently legislative action. As I have pointed out, such action has the same purpose and effect as legislation. The Michigan Constitution requires that legislative acts adhere to the enactment and presentment requirements of the constitution. Const 1963, art 4, §§ 1, 22, 26, 33.

In this case, the “legislative acts” did not comply with the enactment and presentment requirements embodied in the Michigan Constitution. Therefore, the acts usurped the role of the Governor in the lawmaking process and violated the separation of powers provision. Const 1963, art 3, § 2. Accordingly, jcar’s and the Legislature’s authority under §§45 and 46 is unconstitutional.

B. SEVERABILITY OF §§ 45 AND 46

Having determined that jcar’s and the Legislature’s authority to approve or disapprove agency-promulgated rules is unconstitutional, I address whether the offending sections can be severed from the APA. The alternative is to strike down the entire act as unconstitutional. The general rule favors severability:

In the construction of the statutes of this state the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the legislature, that is to say:

If any portion of an act or the application thereof to any person or circumstances shall be found to be invalid by a court, such invalidity shall not affect the remaining portions or applications of the act which can be given effect without the invalid portion or application, provided such remaining portions are not determined by the court to be inoperable, and to this end acts are declared to be severable. [MCL 8.5; MSA 2.216.]

In Maki v East Tawas,13 this Court noted that MCL 8.5; MSA 2.216 requires us to consider whether a statutory provision ruled unconstitutional is independent of the remainder of the act in which it is found. Id. at 159. In addition, the Court must consider whether the remainder of the act is “otherwise complete in itself and capable of being carried out without reference to the unconstitutional [section].” Id. Therefore, I make a two-step analysis to determine whether we may sever the invalid statutory provisions from the remainder of the act. I consider, first, whether the Legislature expressed that the provisions at issue were not to be severed from the remainder of the act. If it did not, then I must determine whether the unconstitutional portions are so entangled with the others that they cannot be removed without adversely affecting the operation of the act.

Turning to the relevant portions of §§ 45 and 46, I find that there is no express provision in the APA that prohibits the Court from severing the offending portions.

Next, I find that we can sever the invalid portions of §§ 45 and 46 without adversely affecting the remainder of the apa. Without the provisions authorizing jcar or legislative approval, the apa continues to provide for public notice and an opportunity to be heard. MCL 24.208; MSA 3.560(108) requires the Michigan Register to publish proposed administrative rules. MCL 24.241; MSA 3.560(141) requires a public hearing and notice of hearing before the adoption of a rule.

I find it significant, also, that the apa, as originally enacted, did not include the provisions for JCAR or legislative review of agency-promulgated rules. See 1969 PA 306. Those provisions were not added until the Legislature amended the APA in 1971. See 1971 PA 171. Thus, I find that the original provisions of the APA can remain effective even after the unconstitutional portions from the remainder of the act are severed.

I would sever the offending portions of §§ 45 and 46 from the APA, specifically subsections 8, 9, 10 and 12 of § 45¹⁴ and the second sentence of subsection 1 of § 46.¹⁵ The remaining provisions of the APA would remain in effect.¹⁶

C. CONSTITUTIONALITY OF THE ENABLING ACT

The next issue is whether the enabling act that gives DOC the authority to promulgate rules is an unconstitutionally broad delegation of legislative power. The Legislature must provide standards to an administrative agency for the exercise of power delegated to it. In Blue Cross & Blue Shield of Michigan v Governor, 422 Mich 1, 51-52; 367 NW2d 1 (1985), the Court stated:

The criteria this Court has utilized in evaluating legislative standards are set forth in Dep’t of Natural Resources v Seaman, 396 Mich 299, 309; 240 NW2d 206 (1976): 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. The preciseness required of the standards will depend on the complexity of the subject. Argo Oil Corp v Atwood, 274 Mich 47, 53; 264 NW 285 (1935). Additionally, due process requirements must be satisfied for the statute to pass constitutional muster. State Highway Comm v Vanderkloot, 392 Mich 159, 174; 220 NW2d 416 (1974).

In Blue Cross & Blue Shield, the Court considered the constitutionality of a delegation of power to the Insurance Commissioner. It found that, where the delegation simply provided the commissioner with the discretion to “approve” or “disapprove” risk factors proposed by health care corporations, it was unconstitutional.

Here, the statutory delegation of authority to the Director of doc contains many more limitations on that authority than were present in Blue Cross & Blue Shield. The provisions at issue state:

1) The director may promulgate rules pursuant to the administrative procedures act . . . which may provide for all of the following:

a) The control, management, and operation of the general affairs of the department.

* :|: *

d) The management and control of state penal institutions ....

x x x

3) The director may promulgate further rules with respect to the affairs of the department as the director considers necessary or expedient for the proper administration of this act. [MCL 791.206; MSA 28.2276.]

When the delegation of authority to doc is examined in total, I find that it contains sufficient guidelines and restrictions. First, the director must abide by the terms of the apa in promulgating new rules. MCL 791.206(1); MSA 28.2276(1). Second, the director may promulgate rules only for the effective control and management of DOC. MCL 791.206(l)(a); MSA 28.2276(l)(a). Third, the director may not promulgate rules that apply to jails owned by municipalities that detain persons fewer than seventy-two hours. MCL 791.206(l)(d); MSA 28.2276(l)(d). Fourth, the director may promulgate rules only as “necessary or expedient for the proper administration of this act.” MCL 791.206(3); MSA 28.2276(3). Fifth, the director may not promulgate rules that prohibit a probation or parole officer from carrying a firearm on duty or that allow a prisoner to have his name changed. MCL 791.206(4); MSA 28.2276(4).

These are but a few of the “guidelines” contained in the enabling statute. Accordingly, I find that the powers delegated to the director of doc, when read as a whole, are sufficiently limited to pass constitutional muster.

Furthermore, the constitution does not require the enabling act to specify in great detail the standards that an executive branch agency must follow in promulgating rules. West Ottawa Public Schools v Director, Dep’t of Labor, 107 Mich App 237; 309 NW2d 220 (1981). The Legislature may provide standards in “ ‘quite general language, as long as the exact policy is clearly made apparent ....’” Id. at 243 (citation omitted).

Here, I find that the standards make it clear that the director of doc is to promulgate rules to manage and control DOC, subject to the limitations and directions noted. I find such detail sufficient, in this context, to make the role of the director clearly apparent and to satisfy due process. Therefore, petitioners have not overcome the presumption that the enabling act is a constitutional delegation of power to the executive branch.

D. CONSTITUTIONALITY OF THE PROMULGATED RULES

The final issue is whether the visitation rules promulgated by DOC exceed the scope of authority that the enabling act delegated to it. In making its determination, the Court considers: “(1) whether the rule is within the subject matter of the enabling statute; (2) whether it complies with the legislative intent underlying the enabling statute; and (3) whether it is arbitrary and capricious.” Dykstra v Dep’t of Natural Resources, 198 Mich App 482, 484; 499 NW2d 367 (1993), citing Luttrell v Dep’t of Corrections, 421 Mich 93, 100; 365 NW2d 74 (1984).

I find that the rules are within the subject matter of the enabling act. The enabling act delegates authority to DOC to promulgate rules for the management and control of DOC and the state’s prisons. MCL 791.206; MSA 28.2276. The rules at issue limit who may visit prisoners and how many times a prisoner may have visitors. Such rules are directly related to the director’s responsibility to manage and control the state’s prisons. Therefore, the doc’s rules meet the first prong of the test.

I find also that the rules promulgated by DOC are consistent with the legislative intent underlying the enabling act. The Legislature gave doc broad authority to make rules necessary to manage and control the prison system. MCL 791.206; MSA 28.2276. I infer from that broad grant of authority that the Legislature intended doc to address specific issues, such as visitation rules and guidelines, as in this case.

Finally, I find that the rules that doc promulgated are not arbitrary and capricious. A rule is not arbitrary or capricious if it is rationally related to the purpose of the enabling act. Dykstra, supra at 491. Doc has proffered that it set forth the rules “to increase the security of the state’s penal institutions, to assure the safety of both the residents of and the visitors to these facilities, and to reduce the incidence of contraband smuggled into such facilities.”

I find that rules promulgated for such purposes are rationally related to the authority of DOC to manage and control the state’s prison facilities. MCL 791.206; MSA 28.2276. Therefore, the DOC rules at issue in this case meet the Dykstra/Luttrell test for validity, and I would uphold them as proper.

Petitioners’ final argument is that doc’s rules limiting visitation violate prisoners’ rights to due process, free exercise of religion, and the effective assistance of counsel. I find petitioners’ argument unfounded for the reasons set forth in the Court of Appeals opinion. 222 Mich App 408-409; see also Bazzetta v McGinnis, 124 F3d 774 (CA 6, 1997), supplemented 133 F3d 382 (CA 6, 1998); Bazzetta v Dep’t of Corrections Director, 231 Mich App 83; 585 NW2d 758 (1998). Accordingly, I would affirm the Court of Appeals holding on that issue.

m. conclusion

The Legislature’s reservation of authority to approve or disapprove rules proposed by executive branch agencies violates the Michigan Constitution. Action taken pursuant to that authority is inherently legislative in nature and does not comply with the enactment and presentment requirements of the constitution. Accordingly, it usurps the role of the Governor in the legislative process and violates the separation of powers provision. Therefore, I would hold that subsections 8, 9, 10, and 12 of § 45 and the first sentence of subsection 1 of § 46 are unconstitutional.

I also would hold that the offending portions of §§45 and 46 may be severed from the rest of the apa without declaring the entire apa unconstitutional. I would distinguish this holding from that of the Court of Appeals, because it would not strike down §§45 and 46 in their entirety. This holding would sever only the specified portions of the sections. The remaining portions would remain effective.

In addition, I would hold that the Legislature provided sufficient standards in its statutory grant of authority to doc to promulgate administrative rules so that the delegation passes constitutional muster. Finally, I would hold that the rules at issue in this case are valid and constitutional.

Corrigan and Young, JJ., concurred with Kelly, J.

1 222 Mich App 385; 564 NW2d 130 (1997).

2 1977 PA 108.

3 Discussed below, part n(A).

4 The United States Supreme Court discussed the similar requirements of the federal constitution in Immigration & Naturalization Service v Chadha, 462 US 919, 957-958; 103 S Ct 2764; 77 L Ed 2d 317 (1983):

The bicameral requirement, the Presentment Clauses, the President’s veto, and the Congress’ power to override a veto were intended to erect enduring checks on each Branch and to protect the people from the improvident exercise of power by mandating certain prescribed steps. To preserve those checks, and maintain the separations of powers, the carefully defined limits on power of each Branch must not be eroded.

5 Unlike the dissent, I find this issue to be quite different from that of the constitutionality of delegation of rulemaking authority to executive branch agencies.

6 8 USC 1254(c)(2).

7 The United States Constitution requires that, before a bill becomes law, both houses of Congress pass it and, then, that it be presented to the President. US Const, art I, § 7.

8 I agree with the dissent that not every action resembling legislation requires the passing of a law, and, therefore, that the Legislature may constitutionally delegate rulemaking authority to executive agencies. However, I find that there is a distinction between executive rulemaking and the JCAR approval process.

When an executive agency such as the doc interprets a statute it administers by promulgating a rule, the action must be taken within the confines of the enabling statute. In that sense, the agency’s action is “checked” by the statute. However, when the Legislature, as here, reserves to itself the power to block agency rules from taking effect, there is no corresponding check. See Chadha, supra at 954, n 16. Instead, the Legislature’s action exerts a “policy-making effect equivalent to amending or repealing existing legislation. ” New Jersey General Assembly v Byrne, 90 NJ 376, 388; 448 A2d 438 (1982) (emphasis added). Therefore, such actions are subject to the enactment and presentment requirements of our 1963 Constitution. As the Alaska Supreme Court explained in Alaska v ALIVE Voluntary, 606 P2d 769, 777 (Alas, 1980), “[t]he fact that [the Legislature] can delegate legislative power to others who are not bound by [the enactment and presentment requirements] does not mean that it can delegate the same power to itself and, in the process, escape from the constraints under which it must operate.”

There is also a distinction between the JCAR review process and a proposal that is introduced into a legislative committee. Unlike an executive branch agency with statutory authorization to promulgate rules, a representative or senator has no independent discretionary authority to pass bills. Thus, when a proposal introduced into a legislative committee does not become a bill, the Legislature has not infringed upon any authority granted to a particular legislator. When the jcar or the Legislature blocks the promulgation of an administrative rule, that action limits or effectively revokes the authority granted by the Legislature to an executive branch agency. Thus, the dissent’s analogy of the jcar review process to a proposal introduced into a legislative committee is inapposite. See post at 175, n 11.

9 The dissent states that I misapprehend the argument of petitioner and amici curiae. Yet the dissent simply restates what I have identified here as the argument made by them.

10 The constitutional provision states:

The legislature may by concurrent resolution empower a joint committee of the legislature, acting between sessions, to suspend any rule or regulation promulgated by an administrative agency subsequent to the atfjoumment of the last preceding regular legislative session. Such suspension shall continue no longer than the end of the next regular legislative session.

11 165 Wis 2d 687; 478 NW2d 582 (1992).

12 117 Idaho 660; 791 P2d 410 (1990).

13 385 Mich 151; 188 NW2d 593 (1971).

14 MCL 24.245(8>(10), (12); MSA 3.560(145)(8)-(10), (12).

15 MCL 24.246(1); MSA 3.560(146)(1). The sentence reads: “An agency shall not file a rule . . . 'until at least 10 days after the date of the certificate of approval by the committee or after the legislature adopts a concurrent resolution approving the rule.”

16 I would not go as far as the Court of Appeals holding that struck down both §§ 45 and 46 in their entirety.