Michigan Supreme Court Invalidates Governor's COVID Order

The opinion answered questions certified from a federal district court.

|The Volokh Conspiracy |

The case is In re Certified Questions; I doubt I'll be able to analyze it in detail, but here is the court's summary of the opinions:

[1.] The Michigan Supreme Court, in opinions by Justice Markman, Chief Justice McCormack, Justice Viviano, and Justice Bernstein, unanimously held: … The Governor did not have authority after April 30, 2020, to issue or renew any executive orders related to the COVID19 pandemic under the EMA [Emergency Management Act of 1976].

[2.] The Michigan Supreme Court, in an opinion by Justice Markman joined in full by Justices Zahra and Clement and joined as to Parts III(A), (B), (C)(2), and IV by Justice Viviano, further held: … The Governor did not possess the authority to exercise emergency powers under the EPGA [Emergency Powers of the Governor Act of 1945] because the act unlawfully delegates legislative power to the executive branch in violation of the Michigan Constitution.

[3.] Justice Markman, joined by Justices Zahra and Clement, concluded 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 and that the EPGA violated the Michigan Constitution because it delegated to the executive branch the legislative powers of state government and allowed the executive branch to exercise those powers indefinitely.

First, under the EMA, the Governor only possessed the authority or obligation to declare a state of emergency or state of disaster once and then had to terminate that declaration when the Legislature did not authorize an extension; the Governor possessed no authority to redeclare the same state of emergency or state of disaster and thereby avoid the Legislature's limitation on her authority.

Second, regarding the statutory language of the EPGA, plaintiffs' argument that an emergency must be short-lived and the Legislature's argument that the EPGA was only intended to address local emergencies were textually unconvincing. And while the EPGA only allows the Governor to declare a state of emergency when public safety is imperiled, public-health emergencies such as the COVID-19 pandemic can be said to imperil public safety.

Third, as the scope of the powers conferred upon the Governor by the Legislature becomes increasingly broad, in regard to both the subject matter and their duration, the standards imposed upon the Governor's discretion by the Legislature must correspondingly become more detailed and precise. MCL 10.31(1) of the EPGA delegated broad powers to the Governor to enter orders "to protect life and property or to bring the emergency situation within the affected area under control," and under MCL 10.31(2), the Governor could exercise those powers until a "declaration by the governor that the emergency no longer exists."

Thus, the Governor's emergency powers were of indefinite duration, and the only standards governing the Governor's exercise of emergency powers were the words "reasonable" and "necessary," neither of which supplied genuine guidance to the Governor as to how to exercise the delegated authority nor constrained the Governor's actions in any meaningful manner. Accordingly, the EPGA constituted an unlawful delegation of legislative power to the executive and was unconstitutional under Const 1963, art 3, § 2, which prohibits exercise of the legislative power by the executive branch.

Finally, the unlawful delegation of power was not severable from the EPGA as a whole because the EPGA is inoperative when the power to "protect life and property" is severed from the remainder of the EPGA. Accordingly, the EPGA was unconstitutional in its entirety.

[4.] Justice Viviano, concurring in part and dissenting in part, joined Justice Markman's opinion to the extent that it concluded that the certified questions should be answered, held that the Governor's executive orders issued after April 30, 2020, were not valid under the EMA, and held that the EPGA, as construed by the majority in Justice Markman's opinion, constituted an unconstitutional delegation of legislative power. Justice Viviano would have concluded that the EPGA, which only allows the Governor to declare a state of emergency when public safety is imperiled, does not allow for declarations of emergency to confront public-health events like pandemics because "public health" and "public safety" are not synonymous and, in light of this conclusion resolving the issue on statutory grounds, would not have decided the constitutional question whether the EPGA violates the separation of powers.

However, because the rest of the Court interpreted the statute more broadly, Justice Viviano addressed the constitutional issue and joined Justice Markman's holding that the EPGA is an unconstitutional delegation of legislative power. Justice Viviano also indicated that in an appropriate future case, he would consider adopting the approach to nondelegation advocated by Justice Gorsuch in Gundy v United States (2019) (Gorsuch, J., dissenting).

[5.] Chief Justice McCormack, joined by Justices Bernstein and Cavanagh, concurring in part and dissenting in part, concurred with Justice Markman's opinion to the extent that it concluded that the certified questions should be answered; held that the Governor's executive orders issued after April 30, 2020, were not valid under the EMA; and rejected plaintiffs' statutory arguments that the EPGA did not authorize the Governor's executive orders.

However, Chief Justice McCormack dissented from the majority's constitutional ruling striking down the EPGA. The United States Supreme Court and the Michigan Supreme Court have struck down statutes under the nondelegation doctrine only when the statutes contain no standards to guide the decision-maker's discretion, and the delegation in the EPGA had standards—for the Governor to invoke the EPGA, her actions must be "reasonable" and "necessary," they must "protect life and property" or "bring the emergency situation … under control," and they may be taken only at a time of "public emergency" or "reasonable apprehension of immediate danger" when "public safety is imperiled." Those standards were as reasonably precise as the statute's subject matter permitted. Accordingly, the delegation in the EPGA did not violate the nondelegation doctrine.

[6.] Justice Bernstein, concurring in part and dissenting in part, disagreed with the majority's conclusion that the EPGA is unconstitutional. An examination of caselaw from both the Michigan Supreme Court and the United States Supreme Court supported the conclusion that, under current law, the grant of power in the EPGA does not offend the separation of powers. Justice Bernstein would continue to apply the "standards" test that the Michigan Supreme Court has consistently used to analyze nondelegation challenges, would leave the decision whether to revisit the nondelegation doctrine to the United States Supreme Court, and would leave to the people of Michigan the right to mount challenges to individual orders issued under the EPGA.

Because the Michigan Supreme Court was only answering questions certified by a federal district court, this decision doesn't itself issue any injunction against the state government. But the conclusion of Justice Markman's opinion, which seems to capture the view of the majority, is clear: "[T]he executive orders issued by the Governor in response to the COVID-19 pandemic now lack any basis under Michigan law." (The opinion adds, though, "Our decision leaves open many avenues for the Governor and  legislature to work together to address this challenge and we hope that this will take place.")

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  1. One Democrat Tyrant down.

    1. Republican Tyrants are ok?

      1. Charlie Baker (RINO-MA) is also facing a similar suit.

  2. EV: I doubt I’ll be able to analyze it in detail, . . .

    I doubt anyone will be able to analyze it in detail.

    1. I started to read it tonight. Then I saw how splintered the ruling is.

      Tomorrow.

      1. Even as a layperson I found it pretty straight forward.

        The Riot Act offered no means of relief from gubernatorial control except for (1) a citizens initiative repealing the entire law or (2) the legislature repealing the law and overriding the governor’s veto.

        Ironically #1 was in progress, but is not a path for timely relief (and with a stay-at-home order as in Australia, organization would be impossible), is subject to political meddling as the executive branch counts the votes, and much harm could be done in the interim by a non-benevolent executive.

        The law was plainly unconstitutional.

        The other bit of good news is that the ruling took place immediately, despite EV saying it wouldn’t. The AG of Michigan has ceased enforcing executive orders immediately.

  3. No lawyers were allowed to appear, due to the virus. The judges were all required to wear masks.

    1. The argument was by Zoom, and you can find it on the Michigan Supreme Court website if you want to watch. It was the longest appellate argument I have ever seen.

  4. I used to think the biggest risk factor for Covid-19 was having a Republican governor. This case shows the biggest risk factor is having a Republican legislature.

    1. Yes, MI is so much worse than NY and NJ.

      1. It certainly is.

        New York, with a Democratic governor assisted by a Democratic legislature, has largely licked the virus, through compulsory masking. It now has fewer daily deaths than Michigan, despite a much larger population.

          1. Doesn’t disprove what I said.

            New York was hit hardest and turned the situation around. Red states have followed the example of the Maskless Idiot in Chief and look at what’s happened. Finally it happened to him.

        1. NY lost 1711 people per million population. Mississippi the state with the highest rate for states with a GOP governor and legislature has a rate of 1008 per million.

          So NY one of the richest states had a fatality rate 70% higher than Mississippi, which not only is the poorest state, also has the highest % Black population which is supposedly much more vulnerable to the covid.

          Way to go Cuomo.

          How oblivious to facts are you?

          1. As oblivious as he needs to be.

        2. New York already decimated the nursing homes. The only reason NY has fewer daily deaths now is that the nursing home residents can’t die twice.

    2. 7 of the top 10 states for covid fatalities per million population have Democratic governors. The top 4 are NJ, NY, MA, CT.

      1. Kazinski, your measuring tool is a cumulative measurement. You just cited a list of 4 states hit hard in the earliest part of the pandemic—each of which began coping sooner, and accumulating cases and fatalities longer, than any of the red states.

        Ask yourself, what is the point of these state-to-state comparisons? If you are trying, for instance, to reckon the relative advantages of masking and strong compliance with social distancing, then the states you cite, by their present favorable places in national rankings, make the case for those practices overwhelmingly. The fact that those states previously were hit particularly hard makes the conclusion in favor of masking and mandatory distancing more persuasive.

        To the extent that political leaders—including those in New York and Massachusetts—have backed away from their previous strict methods, and now lean towards relaxed public health emphasis, and a reopened economy, they court trouble. The latest measurements show the virus waxing. The numbers are not yet dramatic, but the trend is once again headed in the wrong direction. That reversal followed shortly after the decisions to reopen much of the economy, and send students back to schools and colleges.

  5. “The underlying federal case was filed in May…on behalf of four west Michigan medical providers and a patient seeking a knee surgery. At the time, Whitmer’s orders banned elective procedures.”

    Herr Whitmer permitted surgical abortions but not knee surgeries.
    And there are people who will have life-long disabilities because of the delay in surgery, along with opiate addictions.

    We haven’t cured cancer, we’ve just stopped treating it. Same thing with heart disease.

  6. In general, if a state allows lottery ticket sales, it should allow everything.

  7. Justices Bernstein and Cavanagh?

  8. Avoided above are the interesting analogies of republicanism:democracy-ism::autocracy:mobocracy.

    I say again, study the first political culture to struggle with proper rule, the Ancient Athenian Greeks. Democracy (qua mob rule) failed then for all the same reasons that it is failing now.

    Secretary of State succeeds

  9. I am most heartily glad that our despotic and dictatorial Gov. “Wretched” Whitmer lost to the Michigan Supreme Court.
    I am also happily surprised that Justice Bernstein also went against Gov. Whitmer.

  10. There’s a pretty good piece on Balkinization about this case. Essentially, the Court is applying federal limited powers analysis to a state law plenary power issue. States have a general police power and the federal government doesn’t.

    I don’t know enough about Michigan law specifically to determine if this case is right or not, but the Balkinization piece is very interesting.

    https://balkin.blogspot.com/2020/10/attack-of-clones-how-state-courts.html

  11. Don’t worry guys, Michigan’s resident tyrant has declared that she isn’t going to abide by the court’s ruling. She’s got a pen and a phone.

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