Coronavirus Is an Opportunity to Reject Judicial Supremacy

If anyone has benefitted from the coronavirus pandemic, it’s lawyers. Business is positively booming; if Americans know how to do anything, it’s file lawsuits. The American Spectator reports that since the various pandemic measures were enacted in March (has it really only been two months?), “dozens” of lawsuits have been filed against Democratic governors across the country.

As a general matter, that’s not a problem. In fact, it’s very good to vindicate in court one’s federal and state constitutional rights and in the process check government overreach. After all, that’s the core of what courts are there to do: grant to litigants whatever relief is proper and just to remedy violations of their vested legal rights.

But the logic of that commendable system of judicially protected rights somewhat falls apart when the plaintiffs are government actors. The current situation in Michigan is instructive on this point.

Legislature v. Governor

On April 30, the Michigan state legislature’s Republican-controlled House and Senate each adopted resolutions by voice vote (so no tallies were recorded) that authorized House Speaker Lee Chatfield and Senate Majority Leader Mike Shirkey to take Governor Gretchen Whitmer to court in her official capacity. Less than a week later, the legislature filed its lawsuit, asking the Michigan Court of Claims to grant its request for a declaratory judgment against Whitmer, one which holds that her “ongoing ‘emergency’ orders are improper and invalid as a matter of Michigan constitutional and statutory law.” Specifically, the Legislature asked the court, among other things, to “declare that the Governor’s ongoing COVID-19 executive orders . . . violate the separation of powers.”

In a May 6 press release, Shirkey said the legislature “firmly believe[s] the governor is acting beyond her authority and has left us no choice other than to seek clarification from the courts” (emphasis added) The case is scheduled to  be heard Friday.

Whither Ambition?

By running to court instead of engaging Whitmer politically, the legislature broadcasts an embarrassing timidity, an apparent belief in its own toothlessness in the face of the governor’s unprecedented “executive-domineered legal regime.” The litigious legislature has endorsed the idea that the courts alone can save Michiganders from her grip.

This is a lie.

In reality, the legislature has a duty (not to mention the tools) to maintain Michigan’s constitutional structure; that isn’t just a job for the courts, contrary to what anti-constitutional judicial supremacists (and apparently also these skittish state legislators) would have you believe. Simply put, the responsibility to maintain the structure of Michigan’s government falls to all three branches. The legislature is not exempt.

Sadly, Michigan’s Republican legislators have revealed their deeply impoverished understanding of constitutionalism. They lie supine before Whitmer, who has revealed her tyrannical soul, placing Michigan “under rule-by-executive-order for over eight weeks” and counting. Legislators pluck up just enough courage to emerge long enough to ask the third branch of government, the courts, to scold Whitmer rather than simply take action themselves.

The legislature “firmly believe[s]” that Whitmer has far exceeded her constitutional authority but will nonetheless leave it to the courts to “clarif[y]” the situation. (The legislature requested a declaratory judgment, not an injunction; while the latter might have the practical effect of halting Whitmer’s despotic, one-woman show, the former essentially requests that the court simply states the obvious, unbacked by any executive enforcement, namely, that Whitmer has vastly overstepped her exercise of legitimate executive authority. And water is wet.)

The legislature—the “sole lawmaking [sic] body in [Michigan’s constitutional] system”—should exercise its awesome legislative power rather than fight a media-driven proxy war in the judiciary. For even if the legislature wins in court, to what end will this “victory” be driving? A favorable ruling won’t change the underlying political calculus at all. Because to get the result it wants, the legislature would have to act to check Whitmer, with or without a court’s declaratory judgment.

At some point, the legislature will need to embrace the inevitable political cage match—or be rendered impotent. It can pass bills that embody its vision for how Michigan should reopen. It can force Whitmer to go on record and veto whatever “comprehensive and deliberative” plan it will devise to move the state beyond the pandemic-induced lockdown and reopen its economic and social life.

Legislators can call members of the executive branch to testify to the precise thinking that’s driving Whitmer’s dramatic overreaction and let Michiganders sit in judgment of whatever they say—or don’t say. They can amend (or outright repeal) the statutes Whitmer claims are the source of her authority. And, if need be, they can simply slash or eliminate the relevant agencies’ funding—which would render Whitmer wholly incapable of implementing her executive orders—orders which are, as the legislature sees it, based on flawed interpretations of the relevant laws.

In short, it can and should act like what it is: a legislature. It should muscle its way back into this process so that the people of Michigan have a voice and have their interests looked after and represented on this weighty issue. Without question, the legislature is powerful enough to do all of these things. But it lacks the will, the manly resolve, to enter the fray.

Until the Michigan state legislature grows a spine and starts standing up for nearly 10 million Michiganders, they will languish under “rule by [Whitmer’s] pen”—which threatens to extinguish the majesty of self-government and make an outlaw of liberty itself.

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About Deion A. Kathawa

Deion A. Kathawa is an attorney who hails from America’s heartland. He holds a J.D. from the University of Notre Dame and a B.A. from the University of Michigan-Ann Arbor. He is a 2021 alumnus of the Claremont Institute’s John Marshall Fellowship. Subscribe to his “Sed Kontra” newsletter.

Photo: Aitor Diago/Getty Images

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