March 26, 2021 Feature

Separation of Powers in the Time of COVID-19

By Cate McClure

On Oct. 2, 2020, the Michigan Supreme Court struck down virtually all of the executive orders issued by the Governor of Michigan since the beginning of the coronavirus pandemic as an unconstitutional violation of the separation of powers doctrine enshrined in both the state and federal constitutions.1

Gov. Gretchen Whitmer had issued over 100 executive orders in an effort to limit the spread of the pandemic, beginning with her order on March 10, 2020, declaring a state of emergency under two Michigan statutes, the Emergency Powers of the Governor Act of 1945 (the “EPGA”)2 and the Emergency Management Act of 1976 (the “EMA”)3. Subsequent orders issued over the course of the intervening six-month period required residents to stay at home, restricted the operation of businesses, events and other gatherings, extended deadlines for license and permit renewals and the filing of tax returns, extended and enhanced unemployment benefits, allowed for virtual meetings of public entities, and authorized remote means for carrying out countless activities of businesses and public entities throughout the state, among many other actions.4

In its Oct. 2 ruling, the Michigan Supreme Court unanimously held that the clear language of the EMA limited the Governor’s emergency powers to 28 days without legislative authorization of an extension.5 With respect to the EPGA, however, the Court split along political party lines, holding that while the language of the EPGA gave the Governor broad authority to exercise emergency powers when public health and safety is imperiled, the indefinite duration and lack of substantive standards defining those powers resulted in an unconstitutional delegation of legislative power to the executive under Article 3, Section 2 of the Michigan constitution, which prohibits the exercise of legislative power by the executive branch. The Court thus held the EPGA to be unconstitutional in its entirety. The result of this ruling was to make those 100-plus executive orders immediately void, throwing into complete disarray the Whitmer administration’s public health initiatives, which theretofore had been the means to limit the spread of the pandemic in the state.

The Nondelegation Doctrine

The Michigan Constitution of 1963 follows the U.S. Constitution in providing that the powers of government are divided into three branches — legislative, executive and judicial — and no person exercising the powers of one branch may properly exercise those of another except as constitutionally provided.6 The state nondelegation doctrine thus prohibits the legislature not only from exceeding its constitutional authority to “make law” by encroaching upon the powers of another branch, but also by relinquishing its own powers to another branch.7 The issue before the Court with respect to the constitutionality of the EPGA was thus whether the legislative grant of executive power under the act constituted such an unconstitutional delegation.

Both Michigan and U.S. Supreme Court precedent establish standards for the constitutional delegation of legislative power. Michigan generally follows the analysis established by the U.S. Supreme Court in J.W. Hampton v. United States, 276 U.S. 394 (1926), requiring that in cases of delegated legislative authority, an “intelligible principle” is all that must exist to guide the delegee’s use of discretion.8 The test, as developed in the federal courts and followed by Michigan courts, balances the specificity of the standards circumscribing the delegated power against the scope of the delegation, such that “when the scope increases to immense proportions, the standards must be correspondingly more precise.”9 In other words, two factors — the amount of discretion and the scope of authority — have been deemed key to determining whether an unconstitutional delegation has taken place. The duration of the delegated power is a pertinent factor in defining its scope, such that temporary authority requires less circumscription than does an indefinite grant of authority.10

The EPGA’s Delegation of Power

The Emergency Powers of the Governor Act, passed in 1945 as a result of the Detroit race riots of 1943, is short and sweet. Section 1 of the EPGA states in pertinent part that

During times of great public crisis … upon his or her own volition, the governor may proclaim a state of emergency and designate the area involved. 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.” (Emphasis added.) 11

Section 2 of the EPGA states as to legislative intent:

It is hereby declared to be the legislative intent to invest the governor with sufficiently broad power of action in the exercise of the police power of the state to provide adequate control over persons and conditions during such periods of impending or actual public crisis or disaster. The provisions of this act shall be broadly construed to effectuate this purpose. (Emphasis added.) 12

Section 3 of the act gives the governor the power to make violation of any rule or regulation issued under the act a misdemeanor.13

The Majority’s Analysis

The majority begins by emphasizing that the emergency power given to the governor under the EPGA is sweeping in scope, encompassing a substantial part of the police power of the state.14 The majority notes that this power, which is “legislative in nature” and involves the suspension of constitutional liberties of the people, was exercised fully by the Whitmer administration through executive orders which required individuals to stay at home, wear face coverings when indoors and practice social distancing, and required businesses to first close, and then upon reopening to comply with similar workplace safeguards.15

As to the duration of the emergency powers as conferred by the EPGA, the majority characterizes it of indefinite duration, given that it will continue until the emergency no longer exists. “The fact that the EPGA authorizes indefinite exercise of emergency powers for perhaps months — or even years — considerably broadens the scope of authority conferred by th[e] statute.”16

The majority found, on the other hand, that the standards governing this emergency power under the EPGA are illusory. The opinion asserts that “reasonable” and “necessary” are the only limits on the governor’s discretion under the act, which words, as defined in Merriam-Webster’s Collegiate Dictionary (11th ed.), afford neither direction to the governor nor constraints on her actions. Under the Court’s rationale, reasonableness and necessity are standards imposed on all government action and are so elastic as to be meaningless.17

In sum, then, the majority found that given the EPGA’s expansiveness and indefinite duration, the standards of reasonableness and necessity are insufficient and the statute is unconstitutional as applied to this delegation.

The Dissent

The Chief Justice’s dissenting opinion on the nondelegation doctrine was joined by two other Justices. The opinion examines in detail both U.S. and Michigan Supreme Court precedent which has consistently upheld statutes with broad and indefinite delegations of legislative authority, rarely invalidated such delegations under the “intelligible principle” test.18 The dissent concludes that court precedent has in fact interpreted reasonableness standards in light of the context to which they are applied, and found a sufficiently “intelligible” standard in almost all cases presented.19

The dissent finds the EPGA similarly provides a more precise standard for action than the majority admits, in allowing for action only “in a public emergency” or “reasonable apprehension of immediate danger,” when “public safety is threatened,” and requiring that the governor’s actions be reasonable and necessary to “protect life and property or bring the emergency situation within the affected area under control.”20 These standards, under the dissent’s analysis, are as precise as the subject matter permits and thus could not be more specific given the “variety, breadth and scope of potential emergencies.”21 This language, the dissent argues, is similar to that in numerous statutes that have been upheld as constitutional under both state and federal precedent, so that finding an unconstitutional delegation in this case is in fact breaking with precedent to create a new rule in a situation that is particularly political in nature.22

The Pandemic Context

The politics of the pandemic in America are impossible to ignore. Protests against government mandates to wear masks and stay at home are rampant, and in Michigan, the politics have gotten particularly ugly with the FBI’s discovery of an anti-government paramilitary group plot to kidnap Whitmer because of her public safety measures.

State of emergency or disaster orders have been issued in all 50 states, and close to 1,000 lawsuits have been filed by individuals and businesses challenging those orders using a wide array of constitutional and other grounds, including due process and equal protection, regulatory takings, separation of powers, and the commerce clause, among others.23 These cases focus on specific provisions of state law, but they each arose out of the larger political issue of executive branch authority to limit individual rights in a public health emergency. Of the cases which deal with executive versus legislative authority, Wisconsin and Michigan are alone in voiding all executive branch orders.24 But few cases have been decided.

These are uncharted waters, both politically and jurisprudentially, yet the cases raise extremely important questions about the government’s ability to institute public safety mandates in the face of a pandemic, projected to become only more frequent in the years to come. One thing above all else has become clear: State laws across the country must be clarified and codified to deal with state action during public health crises, so that executive and legislative authority is clear and established law rather than politics becomes the key player in implementation.

Endnotes

1. Midwest Inst of Health, PLLC v. Governor of Michigan (In re Certified Questions from the United States District Court), No. 161492, ___Mich___,___NW2d___(Oct 2, 2020) available at https://courts.michigan.gov/Courts/MichiganSupremeCourt/Clerks/Recent%20Opinions/20-21%20Term%20Opinions/In%20re%20Certified%20Questions-OP.pdf

2. Mich. Comp. Laws §10.31et seq. (2006).

3. Mich. Comp. Laws §30.01 et seq. (2006).

4. https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705---,00.html

5. This paper is focused on separation of powers issues arising during a pandemic. The Court’s statutory interpretation of the EMA therefore will not be discussed and only the separation of powers issues in the majority and dissenting opinions in the case will be examined.

6. MI Const 1963, art. 3, sec. 2.

7. Midwest v. Governor at 20, n. 16.

8. Id. at 24.

9. Id. at 25 (citing Synar v. United States, 626 F. Supp. 1374, 1386 (D.DC. 1986)).

10. Id. at 26.

11. Section 1 of the Act also specifically provides, “[t]hose orders, rules, and regulations may include, but are not limited to, providing for the control of traffic, including public and private transportation, within the area or any section of the area; designation of specific zones within the area in which occupancy and use of buildings and ingress and egress of persons and vehicles may be prohibited or regulated; control of places of amusement and assembly and of persons on public streets and thoroughfares; establishment of a curfew; control of the sale, transportation, and use of alcoholic beverages and liquors; and control of the storage, use, and transportation of explosives or inflammable materials or liquids deemed to be dangerous to public safety.” Mich. Comp. Laws §10.31(1).

12. Mich. Comp. Laws §10.31(2).

13. Mich. Comp. Laws §10.31(3).

14. Midwest v. Governor at 27.

15. Id. at 29.

16. Id. at 30.

17. Id. at 32.

18. Midwest v. Governor (C.J. McCormack dissenting) at 4-6.

19. Id. at 6.

20. Id. at 7.

21. Id.

22. Id. at 10-11.

23. https://ballotpedia.org/Lawsuits_about_state_actions_and_policies_in_response_to_the_coronavirus_(COVID-19)_pandemic,_2020 - Relevant_litigation

24. https://www.kff.org/coronavirus-covid-19/issue-brief/litigation-challenging-mandatory-stay-at-home-and-other-social-distancing-measures/. See also, Wisconsin Legislature v. Palm, 2020 WI 42.

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By Cate McClure

Cate McClure was appointed to serve as Chair of the Michigan State Board of Ethics in 2019. She formerly worked for many years as Legal Counsel and Policy Analyst for the Michigan State Senate, providing legal and policy guidance to state senators on constitutional, employment, campaign finance, and contract law issues, among many others.