Opinion: Lawmakers pull a 'bait and switch'
The Republican-controlled Michigan Legislature has passed bills that would amend significantly – or more accurately gut completely – the minimum wage and sick leave laws that the Legislature enacted in response to an initiative proposal just prior to the 2018 election.
And Republican Attorney General Bill Schuette, not surprisingly, has given his legal blessing to this effort. Both the outgoing GOP-led Legislature and the outgoing attorney general are completely wrong. The Michigan Constitution absolutely prohibits the Legislature from changing or amending in any way a law that the Legislature has enacted in response to an initiative petition.
In accordance with Art. II, sec. 9, the Legislature responded to the initiative petition by enacting the initiative laws without change or amendment. But at the same time, the Republican leaders stated that they were enacting these laws only to prevent the people from voting on the initiative and that after the election they would amend the laws to make them more favorable to business interests.
This “bait and switch” strategy shows utter disdain for Michigan voters and for the Constitution.
The plain language of the Constitution and the structure for legislative initiative that the Constitution establishes is absolutely clear. The initiative law has come from the people, not the Legislature. This being so, it is not like other laws. It is not a law that the Legislature can amend at will. Under the Constitution, once an outgoing Legislature has enacted a law in response to an initiative petition, and prevented the people from voting on the initiative, that Legislature cannot amend the initiative law in the same legislative session.
The Michigan Constitution is close to the people and under Art. II, sec.9, the people have reserved to themselves the power to propose laws by an initiative petition. When the proponents of an initiative law have gathered the signatures of 8 percent of the registered Michigan voters, the proposed law goes to the Legislature.
The Legislature has three options: first, it can enact the law without change or amendment; second, it can reject the law, in which case the law is submitted to the people for a vote at the next general election; and third, it can propose a different law on the same subject, in which case, both proposals are submitted to the people for a vote at the next general election, and whichever proposal receives a majority of the votes becomes law.
These are the only options that the Constitution provides. It does not provide a fourth option, authorizing the legislature to enact the proposed law without change or amendment, and then turn around after the election is over and amend or change the law.
Since the Michigan Legislature has approved the proposed initiative laws without change or amendment, as is provided in Art. Il, sec. 9, and prevented a vote on those laws, it cannot pull a “bait and switch” and amend the laws after the election has passed. If there is to be any amendment of those laws to make them more favorable to business or otherwise, it must be done at the next session of the Legislature.
Schuette has said that the Constitution “did not impose any express limitations on amending a legislatively enacted initiated law.”
Yet since the Constitution expressly mentions three options for the Legislature when responding to an initiative petition, it necessarily excludes a fourth option. It expressly denies the Legislature the power to do a “bait” and switch” end run around the people by enacting the proposed law without change or amendment and then trying to change or amend the law in the same legislative session.
Moreover, the Constitution must be interpreted in light of the general understanding of the people who adopted it.
We live under a Constitution and the rule of law. The Legislature should have respected the Constitution and allowed the minimum wage and sick leave laws to take effect without change or amendment.
Robert A. Sedler is a constitutional law professor at Wayne State University.