ALEC Files an Amicus Brief with Michigan Supreme Court to Protect Constitutional Structures of Government during Emergencies

What is the proper balance between legislative and executive power during an emergency? While governors have roles to play during emergencies, legislatures are the most powerful branch of government in states. In a recent amicus brief filed with the Michigan Supreme Court, the American Legislative Exchange Council (ALEC) explained how state constitutions protect legislative authority and the people from abuses of governmental authority.

The COVID-19 pandemic has highlighted a number of problems with state emergency management laws. Governors nationwide have exercised exponentially more executive authority in about six months than many of their predecessors had during their full administrations.

Even worse, governors are exercising this authority without the input or oversight of the elected, legislative branch. As legislatures are pushing back, trying to reclaim their law making authority, many governors are fighting the efforts. In some states, governors have sued to keep their authority. In other states, the governors have forced legislatures to sue. As recognized by the ALEC brief, these conflicts are untenable in constitutional republics, which courts are forced to step in and resolve.

In the case in which ALEC filed, technically entitled In Re Certified Questions from the United States District Court, the Midwest Institute of Health sued Michigan Governor Whitmer, among others in federal court. Through the prosecution of the case, the federal court certified two questions to the Michigan Supreme Court. Those questions were:

• Whether the Governor had authority after April 30, 2020 to issue or renew any executive orders related to the COVID-19 pandemic where the state has two, similar laws defining gubernatorial authorities during an emergency; and
• Whether either of the laws defining the Governor’s emergency authorities violates the Michigan Constitution’s separation of powers or non-delegation doctrines.

Before answering those questions, the brief touched on the nature of something called “police power.” As noted in the brief, police power is a state’s “authority to protect ‘the public morals, the public health, or public safety.’” A state’s police power belongs to the state legislature, as it is the branch best suited to “determine… what measures are appropriate and needful for the protection of the… public health… or safety.”

Courts tend to defer to the government more so than usual when it is dealing with an emergency. Despite this deference, courts have theorized on three limitations on the exercise of police power, which the ALEC brief discusses: (1) police power is limited to the state’s borders; (2) the exercise must have a “real or substantial relation” to the protection of public health; and (3) the exercise of police power must not be a “palpable invasion of rights secured by the fundamental law,” which in this context means the Constitution.

After laying a foundation by defining police powers and the limits of this authority, the ALEC brief delves into the questions certified by the federal court. As to the first question certified by the federal court, ALEC points out that both statutes grant the Governor very similar, if not identical authorities. But the Michigan Legislature passed the laws for two very different purposes. The first law in question, known as the Emergency Powers of the Governor Act, was passed in 1945. A couple years prior to the passage, in 1943, Detroit had suffered race riots. The Legislature and Governor realized that the Governor did not have the authority to respond to the riots short of declaring martial law and sought to remedy that problem through the 1945 Act.

The second law in question is called the Emergency Management Act, and it was enacted in 1976. The purpose of this law was to provide the Governor the authority “to effectively prepare for and respond to disasters.” In the law, the Legislature’s definition of “disaster” includes epidemics as a type of emergency empowering the governor to act.

The only difference between the two Acts is a time limit. The 1976 Act caps the Governor’s authority at 28 days unless extended by the legislature, while the 1945 Act does not mention an end to the authority. ALEC points out that the Michigan courts can apply both consistently. Both acts provide the Governor the same basic authorities, so the scope of her emergency powers is not in question. But interpreting the acts as the Governor suggested would provide her unending, unlimited, unchecked, authority.

Because both acts can be applied consistently, ALEC concludes that the court can give “full weight to legislative intent and determine that the Legislature intended to limit the duration of the Governor’s emergency powers related to epidemics to 28 days.”

The federal court also asked the Michigan Supreme Court to opine whether the Governor’s exercise of authority was consistent with the state’s constitutional separation of powers provisions.

Separation of powers is a unique, structural part of the American tradition. The country’s Framers followed structural models of governments established by states and states joining the Union after the Constitution’s adoption have all followed the same model. This model divides the legislative, executive, and judicial powers of government and tries to keep the authorities as distinct and separate as possible.

While the model tries to keep the authorities separate, the structure does not mean that state executive branches—headed by governors—cannot exercise law, or rulemaking, power. Instead, the model means that the legislative branch is best able to establish policy and must, in Michigan, provide standards and guidelines for executive agencies to follow when promulgating rules.

The ALEC brief delves deeply into the theories and purposes for separation of powers. Among the points raised, the brief cites James Madison in The Federalist No. 47, where he quoted Montesquieu. Montesquieu, in turn, warned that where the legislative and executive powers of a government are “united in one person” there “can be no liberty” because of the risk that the person could “enact tyrannical laws” and “execute them in a tyrannical manner.”

Emergencies, especially long term emergencies, are not excuses to cast aside the constitutional structures of government. When these structures are ignored, imbalances in government occur. Among these imbalances is the executive creating crimes and enforcing those criminal standards. And in Michigan, the courts have reserved primarily for the Legislature the authority to create crimes.

The problem with most state emergency management laws, including Michigan’s laws, as highlighted in the brief, is that legislatures have delegated to governors the authority to create and punish crimes. This authority comes without standards, without guidance, and certainly without any establishing of major policy.

The structures of government deserve special attention and preservation. Constitutions are designed to limit the authorities of governments for the protection of the people. Emergencies do not change this protective proposition.

To learn more about police power, how Michigan’s emergency acts could be applied consistently, or about the constitutional structures of government, please read the brief ALEC filed with the Michigan Supreme Court.