Federalism

ALEC, Liberty Win in Michigan Supreme Court

In a major victory for both the ALEC legal center and our friends at the Mackinac Center Legal Foundation, late last week the Michigan Supreme Court effectively ended much of Governor Whitmer’s unilateral rule under emergency declarations in response to the COVID-19 pandemic. Largely agreeing with points raised in the amicus brief ALEC filed with the Court (ALEC was the only major, national organization to file such a brief), in a 4-3 decision, the Court ruled that the Governor’s emergency authority under the 1976 Emergency Management Act (EMA) expired on April 30, while the 1945 Emergency Powers of the Governor Act (EPGA) violated the Michigan Constitution’s separation of powers clause.

In Michigan, as in other states, Governor Whitmer was running roughshod over legislative prerogatives. Through executive order, she claimed unprecedented authority over vast portions of society, ignoring the Legislature and its attempts to rein in her authorities by refusing to extend them. The Court’s decision restored the proper, constitutional balance of power between the Legislature and Governor and will require the two branches to work together in response to the pandemic.

The decision, which was in response to questions certified to the Court from a federal court, is a victory for individual liberty and legislative cooperation with the executive during times of extended crises. The decision essentially upheld both the Governor’s actions and the legislative intent of the EMA while condemning the EPGA’s lack of objective standards to guide the executive.

In a case where the plaintiffs challenged the Governor’s executive orders requiring people to stay home, shutting down businesses that she deemed were not essential for supporting life and other critical functions, and greatly curtailing “non-essential” medical procedures such as knee replacement surgeries, the federal court posed two questions to the state supreme court:

  • Whether Governor Whitmer had authority under either the EMA or the EPGA to issue or renew any orders related to COVID-19 after April 30, 2020; and
  • Whether the EPGA or the EMA violated the Michigan Constitution’s Separation of Powers clause or Non-Delegation Doctrine.

In response to the first question, the court determined that the EMA capped the Governor’s authority at 28 days. The Legislature extended the authority for a few weeks, but ultimately decided against renewing it after April 30. Anticipating this outcome, the Governor signed an order terminating the emergency on April 30, but immediately reissued the emergency declaration and reasserted her authority pursuant to both the EMA and the EPGA. The cap on emergency authority under the EMA, according to the court, meant that the Legislature did not provide the Governor with the authority to renew, or redeclare, “the identical state of emergency and state of disaster.”  Thus, the Governor’s authority to issue a state of emergency under the EMA related to the COVID-19 pandemic expired on April 30, 2020 and she could not redeclare the emergency thereafter.

Since the Governor could not rely on the EMA to re-issue any executive order related to COVID-19, the court then turned its attention to the EPGA. Most of the opinion, in fact, analyzes whether that law violated the state constitution’s separation of powers clause, as the amicus brief filed by the American Legislative Exchange Council pointed out.

Separation of powers is a term that simply means the state constitution limits the executive branch primarily to enforcing laws and the legislative branch to enacting laws. The executive branch may not make laws and the legislature may not enforce or interpret laws. The “non-delegation doctrine” is closely related to separation of powers. Non-delegation simply means that the legislature cannot give to the executive its authority to make laws, with certain, exceptions. “The principal function of the separation of powers is to protect individual liberty,” as noted by the Michigan Supreme Court. “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

To fall within one of the exceptions to the non-delegation doctrine, a law must lay down for the executive an “intelligible principle,” which would guide the person or entity responsible for creating rules as to the policies and standards the legislature envisioned. When courts analyze whether the legislature laid down a sufficiently intelligible principle, they will look to the scope of the power and the specificity of the law’s standards. Basically, if a law provides the executive broad discretion over “something as ‘immense’ as an entire economy” and fails to constrain that authority in any meaningful way, the delegation likely violates separation of powers.

The EPGA is just such a law, concluded the court. It provided the Governor the authority to control society and Michigan’s entire economy while failing to provide a definitive end. The policies promulgated by the Governor, according to the court

“exhibit a sweeping scope, both with regard to the subjects covered and the power exercised over those subjects. Indeed, they rest on an assertion of power to reorder social life and to limit, if not altogether displace, the livelihoods of residents across the state and throughout wide-ranging industries.”

Ultimately, the EPGA provided the Governor “free rein to exercise a substantial part of [Michigan’s] state and local legislative authority… for an indefinite period of time” and thus violated the state constitution’s separation of powers clause.

When crises last longer than a few weeks, the best government response is one where the executive and legislative branches work together. When governors decide to act unilaterally, they through the carefully crafted structures of government out of balance and risk ruling over the state’s residents rather than serving as their elected representatives. Constitutional provisions, especially those relating to the structure of government, apply in emergencies as much as they apply during the normal operations of government. The Michigan Supreme Court’s decision is an important step both in restoring the constitutional structures of government and in protecting individual liberty within the state.


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