Indefinite Emergency Powers Are Unconstitutional

U-M law professor makes flawed case to overturn recent Supreme Court decision

Nicholas Bagley’s recent op-ed in the Detroit Free Press criticizing the Michigan Supreme Court’s decision last October about Gov. Gretchen Whitmer’s use of emergency powers contains two major flaws and is misleading.

First, Bagley radically argues against the centuries-old concept of judicial review by claiming the Legislature should not have to worry about a court “second-guessing it.” Courts play an important role in protecting our constitutional rights against unjust laws. This is a fundamental part of the checks and balances built into the American governing system.

Second, the op-ed omits essential facts about emergency powers in Michigan, as Bagley pretends that the 1945 law the court found unconstitutional is only way the state can respond to emergencies. Historical facts show otherwise: Michigan governors dealt with more than 80 emergencies over the last four decades without using the 1945 law. The problem with this law is that it provided governors with unchecked lawmaking power, and the court was right to rule it unconstitutional.

Michigan has more than one law granting governors emergency powers. In addition to the 1945 act that has been ruled unconstitutional, there is a similar, but more comprehensive law that was created in 1976. Bagley makes no mention of this law, even though it is meant specifically for controlling epidemics. Until Gov. Whitmer came to power, this law was the sole method Michigan governors used to deal with emergencies since its enactment.

In fact, Gov. Whitmer herself used the 1976 law. For the first seven months of the COVID-19 pandemic, every policy she put in place, including the stay-at-home order, mask mandate and school closures, was issued under both the 1945 and 1976 laws. Bagley leaves this fact out. But this means that the governor could have responded to COVID-19 in the same way she did last spring without using the controversial and unconstitutional 1945 law. This severely weakens Bagley’s case to save the 1945 statute.

A key difference between the 1945 and 1976 laws is that the latter requires governors to get legislative approval to continue issuing emergency orders beyond 28 days. This limited duration provides a check on the emergency powers granted to governors, in keeping with constitutional principles. But Gov. Whitmer ignored this 28-day requirement and continued issuing orders without legislative approval.

The Michigan Supreme Court’s ruling last October was two-fold: It declared the 1945 law unconstitutional, but also found, in a bipartisan and unanimous decision, that the governor violated the 1976 law by extending her emergency powers without legislative approval. This invalidated all of Gov. Whitmer’s executive orders issued since April 30, 2020 — those lacking the required legislative approval.

In other words, no matter how it ruled on the 1945 law, the court unanimously held that Gov. Whitmer’s response to the pandemic, after April 30, 2020, was illegal. But she could have continued to use the 1976 law to deal with the pandemic if she worked together with the Legislature. She has chosen not to, however, and is instead continuing to issue unilateral orders for an indefinite period through administrative powers granted to an unelected state official in a different statute.

Considering governors may continue to use the 1976 emergency powers law, there’s no reason to resurrect the 1945 act. In the dozen or so times it’s been used in Michigan’s history, it has repeatedly raised legal concerns for granting governors extraordinarily broad powers. Responding to emergencies, even pandemics, requires neither abandoning checks and balances nor handing indefinite, unilateral control to a governor.

Michigan Capitol Confidential is the news source produced by the Mackinac Center for Public Policy. Michigan Capitol Confidential reports with a free-market news perspective.