In the wake of Michigan’s first positive tests for the coronavirus, Governor Gretchen Whitmer declared a state of emergency pursuant to two state laws: the Emergency Powers of the Governor Act of 1945 (the EPGA)[1] and the Emergency Management Act of 1976 (the EMA).[2] In the weeks and months that followed, Governor Whitmer exercised her special emergency powers by issuing a number of executive orders imposing, among other things:

  • a requirement that all residents stay home, with limited exceptions;
  • a requirement that all residents wear face coverings in indoor public spaces and when outdoors if unable to consistently maintain a distance of six feet or more from individuals who are not members of their household,
  • a requirement that children wear face coverings while playing sports;
  • a requirement that businesses comply with numerous workplace safeguards;
  • a prohibition on the operation of dozens of industries; and
  • a prohibition on nonessential travel and in-person work not necessary to sustain or protect life.

One such order prohibited healthcare providers from performing “non-essential” surgeries, which led three healthcare providers and a man who wished to have knee surgery to file suit in federal court against the governor, the attorney general, and the director of the Michigan Department of Health and Human Services. The plaintiffs’ case rested, in part, on the claim that the EPGA violates provisions in the Michigan Constitution concerning the separation and delegation of powers.[3] The federal district court recognized that resolving plaintiffs’ claims would require the court to “interpret Michigan statutes that have never before been interpreted by the Michigan Courts” and therefore certified two questions to the Michigan Supreme Court.[4] The questions addressed whether Governor Whitmer had the statutory authority to issue or renew executive orders beyond a certain date, and whether the EPGA or the EMA violated the Michigan Constitution as alleged by plaintiffs. The Michigan Supreme Court unanimously agreed to certify both questions, but the justices varied in how to answer those questions.[5]

Writing for the majority, Justice Stephen J. Markman first addressed the EMA. Unlike the EPGA, the EMA imposes a time limit on the governor’s emergency powers. Once the governor declares the state of emergency, it continues “until the governor finds that the threat or danger has passed, the emergency has been dealt with to the extent that emergency conditions no longer exist, or until the declared state of emergency has been in effect for 28 days.”[6] If the state of emergency is to continue after that, both houses of the state legislature must approve a request from the governor that specifies the number of additional days.[7] Governor Whitmer initially declared the state of emergency on March 10, 2020, and the Michigan legislature approved an extension until April 30, 2020, but declined to extend it further. All members of the court agreed with Justice Markman that, after that date, the governor lacked authority under the EMA to issue executive orders relating to the coronavirus pandemic.[8] The court unanimously rejected the governor’s argument that she could “redeclare the same state of emergency” to avoid the time limit and rejected the argument that the time limit imposed a legislative veto.[9] Rather, the EMA’s provisions “impose nothing more than a durational limitation on the governor’s authority.”[10]

Justice Markman next addressed plaintiffs’ challenges to the EPGA, concluding at that outset that, contrary to the plaintiffs’ arguments, the EPGA applied to the coronavirus pandemic. Six of the court’s seven members rejected the contentions that an “emergency” under the act must be short-lived, or must be constrained to a local area, or that only certain types of emergencies qualified.[11] The EPGA enables the governor to “proclaim a state of emergency and designate the area involved” and refers to circumstances “when public safety is imperiled.”[12] Justice Markman relied on a dictionary definition to conclude that the “area involved” may “comprise the entire state, or it may comprise some more localized geographical part of the state.”[13] He took the same approach to interpreting “emergency.” Likening an epidemic to a fire that continues to burn, the justice wrote, “an emergency is an emergency for as long as it persists as an emergency.”[14]

Justice Markman further noted that prior cases, though not addressing the EPGA specifically, had treated epidemics as implicating “public safety” and not merely “public health.”[15] “The people of this state, as well as their public officials, deserve to be able to read and to comprehend their own laws,” wrote Justice Markman, and “we are not prepared to rewrite the EPGA or to construe it in an overly narrow or strained manner to avoid rendering it unconstitutional.”[16]

These conclusions led the majority to address the facial constitutionality of the EPGA. The Michigan Constitution includes an express provision regarding the separation of powers:

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.[17]

The majority looked to both its own precedent and that of the U.S. Supreme Court to assess the contours of the nondelegation doctrine—i.e., “the settled maxim[] in constitutional law . . . that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority.”[18] Citing precedent holding that Michigan’s nondelegation caselaw is similar to that developed in federal courts, Justice Markman explained that the legislative act in question must lay down “an intelligible principle to which the person or body authorized to exercise the delegated authority is directed to conform[.]”[19] Ultimately, the majority concluded that the EPGA does not provide an intelligible principle because it requires only that the governor’s directives be “reasonable” and “necessary.”[20] Consequently, the majority held the EPGA was facially unconstitutional.

Justice David Viviano agreed with the majority that the EPGA violated the nondelegation doctrine, but he contended that reaching the question was unnecessary. In his view, “public health” and “public safety” are distinct terms of art.[21] Relying on the history and laws that followed the 1918 influenza epidemic, Justice Viviano concluded public health crises are the province of health codes and the legislature did not intend to regulate them with the EPGA.[22]

Chief Justice Bridget McCormack, joined by Justices Richard Bernstein and Megan Cavanagh, took the opposite position. They agreed with the majority that the EPGA does apply to pandemics, but they disagreed that it violated the nondelegation doctrine. Like Justice Markman, Chief Justice McCormack also turned to both state and federal precedent, but she concluded that only a delegation that provided “no standards to guide the decisionmaker’s discretion” would constitute an impermissible delegation.[23] The Chief Justice believed that the “particular standards in the EPGA are as reasonably precise as the statute’s subject matter permits,” and thus constitutionally permissible.

Finally, although Justice Bernstein joined Chief Justice McCormack’s opinion in full, he wrote separately to explain why. In his view, concluding that the EPGA did not violate the separation of powers was “inherently troubling” but consistent with state and federal precedent that has let the nondelegation doctrine lay dormant since the New Deal era.[24] Justice Bernstein explained that he “would leave to the Supreme Court of the United States to decide whether it is now time to revisit the nondelegation doctrine.”[25]

Ultimately, the justices were unanimous that the coronavirus pandemic is an exceptional situation posing exceptional risks. Although the majority held that the EPGA unlawfully delegates legislative power to the executive branch, the court emphasized that its ruling was not the final word on dealing with the health crisis. So long as the proper constitutional roles of each branch of government are respected, there remain “many avenues for the Governor and Legislature to work together to address this challenge and we hope that this will take place.”[26]

 
Note from the Editor:
 
The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the authors. We do invite responses from our readers. To join the debate, please email us at info@fedsoc.org.

[1] Mich. Comp. Laws 10.31 et seq.

[2] Mich. Comp. Laws 30.401 et seq.

[3] See Mich. Const. 1963, art. 3, § 2 (“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.”); Mich. Const. 1963, art. 4, § 1 (“[T]he legislative power of the State of Michigan is vested in a senate and a house of representatives.”).  The complaint and the federal district court referred to these provisions as the “Separation of Powers and Non-Delegation Clauses.” Compl. at 25–26, Midwest Inst. of Health, PLLC v. Governor of Mich., No. 1:20-cv-414 (W.D. Mich. May 12, 2020); Midwest Inst. of Health, PLLC v. Governor of Mich., No. 1:20-cv-414, slip op. at 1 (W.D. Mich. June 16, 2020).

[4] Midwest Inst. of Health, PLLC v. Governor of Mich., No. 1:20-cv-414 (W.D. Mich. June 16, 2020); see also Mich. Ct. R. 7.308(A)(2)(a) (“When a federal court, another state’s appellate court, or a tribal court considers a question that Michigan law may resolve and that is not controlled by Michigan Supreme Court precedent, the court may on its own initiative or that of an interested party certify the question to the Court.”).

[5] In re Certified Questions (Midwest Inst. of Health, PLLC v. Governor of Mich.), No. 161492, 2020 WL 5877599, at *4 (Mich. Oct. 2, 2020), available at https://courts.michigan.gov/Courts/MichiganSupremeCourt/Clerks/Recent%20Opinions/20-21%20Term%20Opinions/In%20re%20Certified%20Questions-OP.pdf.

[6] Mich. Comp. Laws § 30.403(4).

[7] Id.

[8] In re Certified Question, 2020 WL 5877599, at *24 n.25.

[9] Id. at *7.

[10] Id.

[11] Justice David Viviano would have held that the EPGA does not apply to public health emergencies such as pandemics. Id. at *36 (Viviano, J., concurring in part and dissenting in part).

[12] Mich. Comp. Laws § 10.31(2).

[13] In re Certified Question, 2020 WL 5877599, at *9.

[14] Id.

[15] Id. at *11 (citing Jacobson v. Massachusetts, 197 U.S. 11, 37 (1905) and People ex rel. Hill v. Lansing Bd. of Ed., 224 Mich. 388, 391, 195 N.W. 95 (1923).

[16] Id. at *11–12.

[17] Mich. Const. 1963, art 3, § 2. 

[18] In re Certified Question, 2020 WL 5877599, at *12 (quoting COOLEY, CONSTITUTIONAL LIMITATIONS 116–17 (1886)).

[19] Id. at *13 (quoting Mistretta v. United States, 488 U.S. 361, 372 (1989)).

[20] Id. at *18.

[21] Id. at *27 (Viviano, J., concurring in part and dissenting in part).

[22] Id. at *29 (Viviano, J., concurring in part and dissenting in part).

[23] Id. at *42 (McCormack, C.J., concurring in part and dissenting in part).

[24] Id. at *46 (Bernstein, J., concurring in part and dissenting in part).

[25] Id. (citing Gundy v. United States, 139 S. Ct. 2116, 2131 (2019) (Alito, J., concurring in the judgment) (“If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort. But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment.”)).

[26] Id. at *3 n.1 (citing Gundy, 139 S. Ct. at 2145 (Gorsuch, J., dissenting)).