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From A 1776 Philadelphia Hall To A 2020 Michigan Courtroom, This Tussle Goes On

Not just a textbook subject, separation of powers matters to these real Michigan lives and livelihoods

Ten years ago, Donald A. Ritchie, then the historian of the United States Senate, wrote an op-ed on the connection between Independence Day and the idea of separation of powers within a government. The National Conference of State Legislators wrote in a website discussion that the intent of separating governmental powers among independent branches “is to prevent the concentration of power and provide for checks and balances.”

Ritchie wrote, “The Fourth of July, however, reminds us that this nation fought a revolution against a parliamentary government and that the system of separation of powers that emerged owes as much to the spirit of the Declaration of Independence as it does to the designs of the Constitution.”

Ritchie concluded that the framers of the Constitution gave “more muscle to the minority.” He continued, “To prevent the ‘tyranny’ that the Declaration had denounced, they designed a system to prevent undue concentration of power, to resist hasty action and temper any sudden shifts in public opinion, to protect citizens’ rights, and to forge a national consensus on demanding issues.”

Separation of powers is not just the subject of history textbooks; it is part of ongoing political debates in Congress and all 50 state governments. Many questions about it have come into relief this year as governments respond to the COVID-19 pandemic. This may be more true in Michigan than anywhere else.

Michigan has two laws covering a state of emergency. A 1976 law lets the governor exercise extraordinary governmental powers but requires legislative consent after 28 days. The other law was adopted in 1945, and it does not require legislative authorization for an emergency. Instead, it lets the governor decide how long it is appropriate to retain those powers. Since May, Gov. Gretchen Whitmer has based her emergency powers on this 1945 law.

This hasn’t happened without controversy or opposition. On Sept. 2, the Michigan Supreme Court is scheduled to hear oral arguments in a lawsuit arguing that Whitmer violated the separation of powers doctrine and did harm to three medical service providers and a patient.

The providers and patient are represented by the Mackinac Center Legal Foundation, which said in a press release, “Gov. Whitmer maintains that a rarely used law from 1945 permits her to wield emergency powers whenever she alone determines it necessary.”

Whitmer’s orders have been criticized for micromanagement and also for lacking consistency or even, in some cases, logic. In early spring, for example, it was legal to walk on a golf course but illegal to swing a club and hit a ball. 

Whitmer’s executive order of June 1 makes it a crime (a misdemeanor) for bar patrons to leave their seat for anything except ordering food or using the restroom.

The executive order provision at issue in the Sept. 2 hearing imposed a lockdown on nonessential medical service providers and procedures. This is said to have caused tremendous financial stress to the medical services industry, and a great deal of inconvenience, pain and sometimes danger for patients.

In its press release, the Mackinac Center Legal Foundation stated, “The Michigan Supreme Court will consider whether this law violates the Michigan Constitution’s requirement that executive, judicial and legislative powers be distinct and separate, so as to protect the people from abuse of power.”