In what I expect to be a long line of suits filed against government executives and agencies that have instituted so many draconian, unconstitutional, illegal, and damaging orders, I found an interesting case out of the State of Michigan.
As I’ve said before, I am skeptical of the idea of going to the courts, which are by definition government entities themselves, to receive justice from another government entity. I believe there is a natural tendency for those who receive a government paycheck to lean towards supporting the position of government. That said, when I read the syllabus for this opinion, I found not only an example of a court opining based on the law, but several interesting points that I think are worth reviewing here.
Jurisdiction – Federal vs State Courts
Plaintiffs in the underlying federal case are healthcare providers that were prohibited from performing nonessential procedures while EO 2020-17 was in effect and a patient who was unable to undergo a knee-replacement surgery that had been scheduled for the end of March.
Midwest Institute of Health, PLLC, doing business as Grand Health Partners, Wellston Medical Center, PLLC, Primary Health Services, PC, and Jeffrey Gulick, v. Governor of Michigan and Michigan Department of Health and Human Services Director, – Syllabus
The plaintiffs, multiple healthcare providers and a patient who were prohibited from performing or receiving nonessential medical procedure by the orders of Michigan Governor Gretchen Whitmer, sued in the District Court for the Western District of Michigan, Southern Division. As part of that case, the District Court certified two questions that needed to be answered by the state’s Supreme Court. The questions dealt with whether or not Governor Whitmer had the authority to issue the COVID-19 related Executive Orders under two Michigan laws, The Emergency Powers of the Governor Act (EPGA) and the Emergency Management Act (EMA).
You may be asking yourself, why does Michigan have two different emergency powers laws? While I am not an expert on Michigan law, it appears that the EPGA, passed in 1945, did not include a time-limit on any declaration of emergency, while the EMA, passed in 1976 does. This will become important as we dig further into this case.
Emergency Powers Authority
Whether, under the Emergency Powers of the Governor Act, MCL § 10.31, et seq., or the Emergency Management Act, MCL § 30.401, et seq., Governor Whitmer has the authority after April 30, 2020 to issue or renew any executive orders related to the COVID-19 pandemic.
Midwest Institute of Health, PLLC, doing business as Grand Health Partners, Wellston Medical Center, PLLC, Primary Health Services, PC, and Jeffrey Gulick, v. Governor of Michigan and Michigan Department of Health and Human Services Director, – Syllabus
The first of the two questions the District Court had for the Michigan Supreme Court had to do with whether the EPGA or EMA delegated to Governor Whitmer the authority to issue or renew executive orders related to COVID-19 after April 30th. That date is important, as we’ll soon see.
Michigan law does delegate to the governor the authority to declare an emergency or disaster, which grants the governor emergency powers. However, that power comes with limitations. The EMA states:
The governor shall, by executive order or proclamation, declare a state of disaster if he or she finds a disaster has occurred or the threat of a disaster exists. The state of disaster shall continue until the governor finds that the threat or danger has passed, the disaster has been dealt with to the extent that disaster conditions no longer exist, or until the declared state of disaster has been in effect for 28 days. After 28 days, the governor shall issue an executive order or proclamation declaring the state of disaster terminated, unless a request by the governor for an extension of the state of disaster for a specific number of days is approved by resolution of both houses of the legislature. . . .
Midwest Institute of Health, PLLC, doing business as Grand Health Partners, Wellston Medical Center, PLLC, Primary Health Services, PC, and Jeffrey Gulick, v. Governor of Michigan and Michigan Department of Health and Human Services Director, – Analysis
So under the EMA, once the governor issues the Executive Order declaring an emergency or disaster, and it’s in effect for four (4) weeks unless the Legislature issues an extension. What is a governor to do if they want to continue the emergency, but the legislature doesn’t grant the extension?
On April 30, 2020, the Governor issued EO 2020- 66, which terminated the declaration of a state of emergency and state of disaster under the EMA. But, immediately thereafter, she issued EO 2020-67, which indicated that a state of emergency remained declared under the EPGA. At the same time, she issued EO 2020-68, which redeclared a state of emergency and state of disaster under the EMA… Although EO 2020-17 has been rescinded, the federal district court held that the case is not moot because subsequent executive orders have continued to impose restrictions on healthcare providers.
Midwest Institute of Health, PLLC, doing business as Grand Health Partners, Wellston Medical Center, PLLC, Primary Health Services, PC, and Jeffrey Gulick, v. Governor of Michigan and Michigan Department of Health and Human Services Director, – Syllabus
This shell game has been tried before. In the case New York State Rifle and Pistol Association v New York City, the city claimed the plaintiffs had no standing because part of the law had been rescinded. Here, the state of Michigan claimed that since the states of emergency and disaster orders had been terminated, the case was moot. However, the District Court noted that the order that had terminated the states of emergency and disaster had immediately been followed by new declarations of a state of emergency and disaster in an attempt to restart the clock. But there’s a twist: While Governor Whitmer rescinded her order under EMA, she claimed the power to issue the new emergency and disaster declarations under EPGA. Why? Because EPGA does not include a time limit on her declaration. This was a blatant attempt by the Governor to get around the fact that the state legislature refused to further extend the governor’s declarations of a state of emergency and disaster, as required by Michigan law. Thankfully, both the District Court and the Supreme Court of Michigan saw through this subterfuge.
First, under the EMA, the Governor only possessed the authority or obligation to declare a state of emergency or state of disaster once and then had to terminate that declaration when the Legislature did not authorize an extension; the Governor possessed no authority to redeclare the same state of emergency or state of disaster and thereby avoid the Legislature’s limitation on her authority.
Midwest Institute of Health, PLLC, doing business as Grand Health Partners, Wellston Medical Center, PLLC, Primary Health Services, PC, and Jeffrey Gulick, v. Governor of Michigan and Michigan Department of Health and Human Services Director, – Syllabus
So the justices on the Supreme Court of Michigan slapped Ms. Whitmer on the wrist for trying to get around the statutory limitations on her powers, though that was only one of the questions this court was asked to respond to.
Separation of Powers
To me, the more important question dealt not with the extension of the emergency powers, but whether the legislation delegating to the governor the power was valid in the first place.
Whether the Emergency Powers of the Governor Act and/or the Emergency Management Act violates the Separation of Powers and/or the Non- Delegation Clauses of the Michigan Constitution.
Midwest Institute of Health, PLLC, doing business as Grand Health Partners, Wellston Medical Center, PLLC, Primary Health Services, PC, and Jeffrey Gulick, v. Governor of Michigan and Michigan Department of Health and Human Services Director, – Syllabus
An important protection of the rights of the citizens in this country is the separation of powers. The idea is that no one person or group can be trusted to exercise all, or even most, of the powers of government. In the United States of America, along with all of the several states, these powers are divided into three groups: legislative, executive, and judicial. We were all taught in school (or at least we should have been), that these checks and balances are crucial to a just government. Michigan, along with many other states, expressly prohibits the delegating of powers from one branch to another.
The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.
Constitution of Michigan of 1963, Article III, Section 2
So the question before this court was, did one of these two emergency powers acts violate this section of the Constitution of Michigan? Apparently all of the justices but one agreed that it did:
Justice MARKMAN, joined by Justices ZAHRA and CLEMENT, concluded that the Governor lacked the authority to declare a “state of emergency” or a “state of disaster” under the EMA after April 30, 2020, on the basis of the COVID-19 pandemic and that the EPGA violated the Michigan Constitution because it delegated to the executive branch the legislative powers of state government and allowed the executive branch to exercise those powers indefinitely.
Midwest Institute of Health, PLLC, doing business as Grand Health Partners, Wellston Medical Center, PLLC, Primary Health Services, PC, and Jeffrey Gulick, v. Governor of Michigan and Michigan Department of Health and Human Services Director, – Syllabus
The one dissenter to this point was Justice Bernstein:
Justice BERNSTEIN, concurring in part and dissenting in part, disagreed with the majority’s conclusion that the EPGA is unconstitutional. An examination of caselaw from both the Michigan Supreme Court and the United States Supreme Court supported the conclusion that, under current law, the grant of power in the EPGA does not offend the separation of powers.
Midwest Institute of Health, PLLC, doing business as Grand Health Partners, Wellston Medical Center, PLLC, Primary Health Services, PC, and Jeffrey Gulick, v. Governor of Michigan and Michigan Department of Health and Human Services Director, – Syllabus
The EPGA does state that in times of public emergency, the governor can proclaim a state of emergency. The law then goes on to say:
After making the proclamation or declaration, the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control.
Midwest Institute of Health, PLLC, doing business as Grand Health Partners, Wellston Medical Center, PLLC, Primary Health Services, PC, and Jeffrey Gulick, v. Governor of Michigan and Michigan Department of Health and Human Services Director, – Opinion
According to the court, the effective lawmaking authority the governor possesses during a state of emergency is only constitutional if it is allowed for a limited period of time. With both the EPGA and the EMA, the Michigan Legislature effectively delegated some of its lawmaking power to the governor during a state of emergency. Since the 1945 EPGA allows the governor to indefinitely assume some legislative powers after declaring an emergency, it violates the state’s non-delegation clause.
Conclusion
For those of you who have been living under Governor Whitmer’s tyrannical executive orders, this is a victory. But if you rest on your laurels, it will be a short lived one. Remember the words of Alexander Hamilton:
The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
Alexander Hamilton, Federalist Papers #78
The courts have no power to force their opinion to be followed. In fact, the Supreme Court of Michigan is dependent on the very executive they just rebuked to enact their judgement. Thankfully, the people of the State of Michigan have no such restriction. The Executive Orders EO 2020-67 & EO 2020-68, decelerating states of emergency and disaster after the April 30th deadline, are void. Again, the words of Mr. Hamilton from Federalist Papers #78:
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.
Alexander Hamilton, Federalist Papers #78
As a government official, Governor Whitmer is exercising delegated authority under her commission as governor of the State of Michigan. Therefore, any of her acts contrary to her commission, which includes supporting the Constitutions of both the State of Michigan and of the United States, are void. While it’s the obligation of the governor to rescind these two orders, it is the duty of the people of the State of Michigan, both inside the government and out, to ignore them. If they do not, then Michigan is no longer a state of laws, no longer run by a government of the people, by the people, and for the people. No, if the people will not uphold the supreme law of their state, then Michigan no longer has a republican form of government. Rather, it has become a monarchy, where the people are ruled by the governor in Lansing, instead of the other way around.
For those of us who do not live in Michigan, this should be a clarion call. We should all check our state constitutions for similar non-delegation clauses, and see if our state’s emergency powers laws violate such a clause. Let’s make sure that the powers we have delegated to our state governments are being exercised within the commissions we’ve given them in the constitutions that created them. And if our laws and/or constitutions need to be fixed to protect us from similar government overreach, then we should start working on that task with those we hire to represent us. Since there is an election coming up, I can think of no better question to ask a candidate, after they show how they have supported the constitutions of your state and of the United States, than how they plan to work towards fixing this problem.
