The Pandemic Showcases Courts’ Limitations

The Michigan Court of Claims on Thursday released its much-anticipated decision in Michigan House of Representatives and Michigan Senate v. Governor Gretchen Whitmer. The court spoke through Judge Cynthia Diane Stephens and ruled mostly in favor of Whitmer. Judge Stephens dismissed the legislature’s lawsuit, denying its request for a declaratory judgment that Executive Order 2020-67 and 2020-68 are “invalid and without authority as written.”

On the merits, the court, contrary to the legislature’s argument, held that the 1945 Emergency Powers of Governor Act (EPGA), is not limited to local emergencies but validly applies statewide and, further, that it isn’t an unconstitutional delegation of legislative power to the governor. 

Finally, the court also held that E.O. 2020-68 exceeded Whitmer’s authority under a 1976 law, the Emergency Management Act (EMA), because she re-declared a state of emergency without legislative approval after the initial 28-day window closed. Senate Majority Leader Mike Shirkey said the legislature would appeal the ruling to the state supreme court. 

On the heels of all that, Whitmer, in a Memorial Day weekend news dump, extended the state’s stay-at-home order to June 12.

Elsewhere, I discussed the pernicious “lie” that sits at the heart of this lawsuit:

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.

The legislature undoubtedly is powerful enough to brawl with Whitmer on its own, with recourse to its own capacious powers, and without the court’s assistance or perceived stamp of legitimacy. Not only that, but a declaratory judgment against Whitmer would also be nugatory, as it would need to be given teeth by the legislature which—it bears repeating—has an independent “responsibility to maintain the structure of Michigan’s government.” In other words, the legislature is not exempt from the duty of constitutional interpretation, nor is it free from the gravitational pull of the rough and tumble politics that comes along with the separation of powers.

By leaving the status quo intact, the court’s opinion demonstrates that courts are, by design, poor vehicles through which to do politics and set wise policy. Institutionally, they’re just not up to the task—and that’s fine because that isn’t their role.

To the court’s credit, it did not attempt to impose its own policy preferences by fiat but instead stuck to interpreting and applying the law as written, acknowledging at the outset that the parties did not “ask th[e] court . . . to address the policy questions surrounding the scope and extent of contents of the approximately 90 [executive] orders” Whitmer has issued since March 10.

The question of how to respond to the coronavirus quintessentially is a political question. It involves a synthesis of epidemiological data, economic models, public opinion, constitutional principles, and public health protocols, which must then be prudently assessed and weighed against one another to achieve the best all-things-considered outcome, all while humbly conceding that the entire enterprise is shot through with uncertainty. 

Moreover, this all must be achieved in a way that recognizes the consent of the governed—that is, conducted through the people’s elected representatives in government, not unelected judges. Politics is often about making the best decision you can while flying partially blind, armed with imperfect information and laboring under numerous cross-pressures.

In other words, politics is the queen of the sciences, and therefore

it is up to elected officials to make decisions because they are the ones who are in charge of the whole, that is, the body politic; it is up to them to take all parameters into account and to envision all the consequences of their actions.

Courts, by design, are less able and equipped to do this, and it shows here.

This doesn’t make courts bad. But engaging in this kind of multi-factor analysis across various domains—law, epidemiology, economics, and the many others implicated in the decisions to close down and then re-open an entire state, home to millions of souls—is simply not their forte.

But Judge Stephens discharged her duty ably. She assessed, interpreted, and applied the relevant laws and precedents, as she was required to do as a lower-court judge. She is not a politician, and so she wisely and prudently eschewed politicking and stuck to legal reasoning. By holding that Whitmer’s actions violate the EMA but that they are nonetheless ultimately valid because her statutory authority concurrently rests on the EPGA, Judge Stephens broadcast a message loudly but implicitly: It is up to the political branches to sort this out.

What’s less clear, however, is why the legislature—the political branch that most represents Michiganders—won’t embrace its role in the state’s constitutional system. Anyone who thought the Court of Claims was going to charge into a statewide lockdown implemented to combat, in President Trump’s words, an “invisible enemy” as a policymaker to save the day was kidding himself, or doesn’t understand the institutional limits of courts. A pandemic is where the adults play; courts are at best the junior partner, as in war.

I’ll say it again: “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: Jeff Kowalsky/AFP via Getty Images

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