Whitmer’s Unilateralism Persists

The Michigan Court of Appeals on Friday released its much-anticipated decision in House of Representatives and Senate v. Governor, in which it ruled 2-1 in favor of Governor Gretchen Whitmer’s sweeping executive orders aimed at curbing the spread of the coronavirus. The panel’s third judge, Jonathan Tukel, concurred in part and dissented in part from the decision.

In May, state legislators filed a lawsuit against Whitmer in the Michigan Court of Claims, which declined to invalidate her flurry of executive orders issued in response to the pandemic. The court ruled her executive orders were lawful under the 1945 Emergency Powers of Governor Act (EPGA) but that Whitmer had overstepped her authority under the 1976 Emergency Management Act (EMA). In a 4-3 decision in June, the Michigan Supreme Court declined to hear directly, on an expedited basis, the legislature’s appeal from the Court of Claims, saying the case should not leapfrog the Michigan Court of Appeals.

The appeals court on Friday said the two laws, which cover strikingly similar subject matters, need not be read together so as to harmonize them. Rather, because the “statutory language is clear and unambiguous, we must apply the statute as written. A court is not permitted to read anything into an unambiguous statute that is not within the manifest intent of the Legislature.” 

On that basis, the court’s majority said Whitmer has the legal authority to act unilaterally, as she has since March, under the EPGA; the court of appeals declined to answer the question of whether the “much more comprehensive, specific, and detailed” EMA also authorizes Whitmer’s actions.

The majority proceeds simply by reading the plain language of each statute, and it finds nothing in the text of the EPGA confining its application only to local or non-statewide emergencies, as the legislature contended in its brief and at oral argument as a way to distinguish the EPGA from the EMA. 

And because the EPGA applies “[d]uring times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state, or reasonable apprehension of immediate danger of a public emergency of that kind, when public safety is imperiled,” the majority found that “epidemic”—which isn’t mentioned specifically in the EPGA, as it is in the EMA—is plausibly encompassed by one of those broader terms. 

Finally, the EPGA does not violate the Michigan constitution’s principle of separation of powers because:

the EPGA contains standards that are as reasonably precise as the subject matter—public emergencies—requires or permits, such that the Legislature, by enacting the EPGA, safely availed itself of the resources and expertise of the executive branch to assist in the execution of legislative policy. . . . The standards found in the EPGA are sufficiently broad to permit the efficient administration of carrying out the policy of the Legislature with regard to addressing a public emergency but not so broad as to leave Michiganders unprotected from uncontrolled, arbitrary power.

The dissent has the better of the argument. For Tukel, the statutes are in pari materia—“literally, ‘in a like manner’”—which means they must be read together so that one is not rendered nugatory or mere surplusage, thereby defeating the legislature’s intent in passing two distinct laws. The majority’s analysis renders two key provisions of the EMA nugatory and mere surplusage, Tukel wrote.

First, the more recently enacted EMA specifically lists an “epidemic” as a triggering event, but the EPGA does not. Tukel writes:

[I]t is clear that the Legislature which enacted the EMA did not understand the EPGA to encompass epidemics, because, simply put, the Legislature would not have intended to enact surplusage; we assume that when the Legislature crafts legislation it knows what the existing law is, and takes it into consideration, and there simply is no reason the Legislature would have included the word “epidemic” in the EMA if it understood the EPGA to already have covered such a situation.”

Second, the EMA places a 28-day time limit on the governor’s ability to act without legislative input; if the legislature declines to extend the governor’s power beyond the 28-day window, her authority under the EMA is stripped, and the status quo, representative government, is restored. 

For the legislature “[t]o engraft such a durational limitation on the EMA, while leaving the governor’s [allegedly] equivalent powers under the EPGA completely unconstrained, subject only to the governor’s whim, would render the EMA’s time limits surplusage,” Tukel argues.

In Tukel’s view, then, the more restrictive EMA governs this dispute, not the EPGA.

Finally, Tukel would ordinarily adhere to the doctrine of constitutional avoidance, which “directs [courts] to decline” to base a ruling on the Michigan constitution “if a case can be decided on other grounds.” Nonetheless, he does engage in a constitutional analysis because “the majority rejects the statutory analysis which I believe is mandated, which thus requires that I consider the constitutional question of whether the Governor improperly exercised (and continues to exercise) legislative powers, in violation of our Constitution.”

Tukel determines that “the orders issued by the Governor are in fact legislative” because, according to the majority’s interpretation, “the governor’s authority to issue the orders, . . . involve[s] the whole power of the Legislature, as there are no subject matters which are outside their potential scope.” Thus, the governor has been “granted . . . the full legislative power” and her orders are therefore “unconstitutional” under the Michigan constitution’s principle of separation of powers.

It is heartening to see a judge like Tukel take seriously his duty “to say what the law is,” but it is disappointing that there wasn’t a second judge like him to form a majority in the case.

It’s long past time for regular order to return to Michigan (not to mention the nation as a whole). Thankfully, COVID-19 is not the bubonic plague all the public-health “experts” insisted it was. When we thought it might have been, it was appropriate for an energetic executive to take the lead to protect public health and human life from what could have been a devastating pathogen. At this point, however, it is obvious that Whitmer is engaged in a naked bid to extend indefinitely her “despotic, one-woman show”—in blatant violation of the sacred principle of government by consent of the governed.

It now falls to the Michigan Supreme Court to recognize that truth.

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About Daniel Mackinac

Daniel Mackinac is the pseudonym of a Michigan native.

Photo: Handout/DNCC via Getty Images

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