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Opinion: Michigan Supreme Court upholds separation of powers, liberty

Adam Carrington

“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty.” So wrote 18th century French political thinker Baron de Montesquieu. And so quoted the Michigan Supreme Court’s majority decision on Friday as it voided the emergency powers exercised by Gov. Gretchen Whitmer over the past five months.

Montesquieu’s argument had greatly influenced the making of our national and various state constitutions. And on Friday, it guided the Michigan Supreme Court.

Like our national constitution, Michigan structures its government on the theory of separation of powers. The people delegate the exercise of their authority to three branches, not one person or body. This delegation tracks along the lines of three governmental functions — lawmaking, law enforcing, and adjudicating disputes according to law. Such separation protects liberty by keeping the lawmakers from controlling how their laws are carried out — a combination that would tempt governments to use the laws to hurt their enemies and to help their friends.

The governor’s actions ran afoul of this division and thus of Michigan’s constitution, Carrington writes.

The governor’s actions ran afoul of this division and thus of Michigan’s constitution. To understand how, we must retrace Michigan’s reaction to the COVID-19 pandemic.

Beginning in March, Whitmer imposed some of the country’s most extensive restrictions in reaction to the virus. She did so under two Michigan laws — the Emergency Powers Act (EMA) and the Emergency Powers of the Government Act (EPGA). Both gave the governor the power to declare a state of emergency. Both granted her extensive regulatory authority while that state of emergency persisted.

The laws had one important difference: The EMA allowed the governor unilaterally to declare a state of emergency, but, after 28 days, it required the legislature to agree to an extension or the state of emergency must end. The EPGA, while also giving the governor independent authority to declare an emergency, left the timing of its suspension to her as well.

Whitmer asserted power under both laws until April 30, 2020, when she and the Michigan legislature failed to agree to an extension of the state of emergency under the EMA. However, she continued to declare such a state and to exercise the accompanying powers under the EPGA.

Brushing aside other interpretations, the primary court opinion agreed that Whitmer rightly read the Emergency Powers of the Governor Act. She did possess authority under it to continue a state of emergency as long as she saw fit. However, the justices then found that the EPGA itself violated the Michigan constitution.

It did so by contradicting what the court called the “nondelegation doctrine.” Applying the logic of separation of powers, this doctrine said that the legislative branch cannot give up its lawmaking power to anyone else, including the executive.

Turning to the EPGA, the justices recognized that governors should get some leeway.

All law enforcement, the court said, involves some kind of discretion in how to administer the law. Moreover, they recognized that the amount of allowable discretion might depend on the conferred power’s scope and duration. The greater the power or the longer the exercise, the more a legislature must set limits on the governor.

By any standard, the EPGA and Whitmer’s actions ran roughshod over these principles. Regarding scope, Whitmer imposed a vast array of new restrictions on Michigan residents, closing businesses, restricting travel and much else. She had curtailed the exercise of liberty to an extent not seen in generations.

Regarding length this law, unlike the EMA, left no timetable or means of legislative intervention to end the emergency. Finally, regarding standards, the EPGA gave no real principles limiting how Whitmer should exercise these vast, open-ended powers. The law said the measures taken must be “reasonable” and “necessary.” But the court rightly found these words, when left alone, too imprecise to impose any limit.

Thus, the EPGA gave Whitmer a blank check for power with no balance limit, one she used to draw heavily from our deposit of liberties. The court did not address whether such a withdrawal was warranted in and of itself. Instead, it defended the constitutional structure by which such decisions should be made. It thereby struck a blow for Michigan resident’s liberty.

Whitmer now has requested a delay in implementing the court’s decision. Some time might be prudent to allow the government to rescind its actions in orderly fashion. But that time must be as short as possible. Five months of violating the constitution is five months too many.

Adam Carrington is the assistant professor of politics at Hillsdale College.