Michigan Supreme Court rules wrongly- and uses a false legal theory to do so.
Remember back in October when the Michigan Supreme Court threw out Whitmer’s emergency declarations as “unconstitutional?”
Here’s what the court said and I will explain why they are wrong- the ruling has TWO parts. The first is simply wrong, the SECOND part is more insidious and is a legal theory which is gradually being expanded by conservatives which could literally gut the operations of our govts at Federal, state and local levels! I will number the two parts though it is not in the article online
Quote: (1) We conclude that the Governor lacked the authority to declare a ‘state of emergency’ or a ‘state of disaster’ under the EMA after April 30, 2020, on the basis of the COVID-19 pandemic. (2) Furthermore, we conclude that the EPGA is in violation of the Constitution of our state because it purports to delegate to the executive branch the legislative powers of state government — including its plenary police powers — and to allow the exercise of such powers indefinitely,” wrote Justice Stephen J. Markman on behalf of the majority.
(1) ruled she didn’t have authority. Really?
two state laws — the Emergency Management Act of 1976 and the Emergency Powers of the Governor Act from 1945
Emergency Management Act of 1976 (see link below) specifically calls out EPIDEMIC as one of the “disasters” which apply.
Quote: Sec. 3. (1) The governor is responsible for coping with dangers to this state or the people of this state
presented by a disaster or emergency.
(2) The governor may issue executive orders, proclamations, and directives having the force and effect of
law to implement this act. Except as provided in section 7(2), an executive order, proclamation, or directive
may be amended or rescinded by the governor.
(3) The governor shall, by executive order or proclamation, declare a state of disaster if he or she finds a
disaster has occurred or the threat of a disaster exists. The state of disaster shall continue until the governor
finds that the threat or danger has passed, the disaster has been dealt with to the extent that disaster conditions
no longer exist, or until the declared state of disaster has been in effect for 28 days
SO under the 1976 law she has to get her state of emergency renewed by the legislature. That’s pretty clear cut and they did extend it once.
Emergency Powers of the Governor Act from 1945 (See link below)
(1) During times of great public crisis,…. the governor may proclaim a state of emergency and designate the area involved. .. the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control. Those orders, rules, and regulations may include, but are not limited to,…[you can read it fully at the link]
(2) The orders, rules, and regulations promulgated under subsection (1) are effective from the date and in the manner prescribed ….but shall cease to be in effect upon declaration by the governor that the emergency no longer exists.
SO- there is NO deadline on this particular act. The legislature did not repeal it when they enacted the 1976 law- so that’s on them and Whitmer was clearly in the right when citing this law.
The court knew this but ruled in the first part of their statement otherwise- and they KNOW they were wrong SOOOOO… hence part TWO of their statement says the 1945 law “purports to delegate to the executive branch the legislative powers of state government”. This legal view is known as the “Nondelegation doctrine” and is becoming the go-to argument for conservatives to roll back regulations or operations’
“The doctrine of nondelegation is the theory that one branch of government must not authorize another entity to exercise the power or function which it is constitutionally authorized to exercise itself.”
The problem with this is that it is literally IMPOSSIBLE for the legislature to write legislation that details every little aspect of the implementation of any law especially when the laws get complex. The US govt and the states generally enact a law and the executive (president or governor charged with enforcement of the law) then have the relevant agency or department work on the minute nitty-gritty. But using the non-delegation authority is simply partisan approach to shut down or shrink govt. If our lawmakers really want to “shrink” govt they can do so rather than have the courts do the work for them by doing an end around the legislature which is exactly what conservatives complain about yet don’t address BY the legislature(s)!
Quoting two UofM Law professors: Legislative delegations pervade just about every area of policy: air quality, drug testing, business regulation, health care, education, and so on. Legislatures have neither the bandwidth nor the expertise to write every detail of complex government programs, least of all when those programs need to adapt nimbly to technological changes, economic disruptions, and new information about the world. Right out of the gate, nondelegation advocates run up against the embarrassing fact that the actual text of the Constitution doesn’t say anything about restricting delegations.”
You can read the rest at the Atlantic link below
http://www.legislature.mi.gov/documents/mcl/pdf/mcl-Act-390-of-1976.pdf
https://www.theatlantic.com/ideas/archive/2020/05/nondelegation-doctrine-orliginalism/612013/
