House of Representatives v. Governor
353655
Mich. Ct. App.Aug 21, 2020Background
- This is Judge Tukel’s concurring-in-part and dissenting-in-part opinion in a Court of Appeals case about Governor Whitmer’s COVID-19 executive orders and the statutory scope of two emergency statutes: the 1945 Emergency Powers of Governor Act (EPGA) and the 1976 Emergency Management Act (EMA).
- The Governor issued sweeping pandemic-related orders (including stay-at-home and business restrictions) backed by misdemeanor penalties under the EPGA and EMA; the Legislature sued in the Court of Claims challenging those orders and seeking declaratory relief.
- Key statutory conflict: EPGA (1945) authorizes gubernatorial emergency orders that continue until the governor ends them; EMA (1976) authorizes emergency action for events including “epidemic” but provides that a state of emergency/disaster expires after 28 days unless both houses of the Legislature approve an extension.
- The Court of Claims found the Legislature had standing and held that the EMA’s 28-day limit applied; Judge Tukel agrees the Court of Claims correctly denied intervention and would affirm the judgment invalidating the executive orders on statutory grounds.
- Judge Tukel also would avoid constitutional questions if statutory grounds suffice, but he explains that, if reached, the Governor’s purported unlimited delegation under the EPGA (as interpreted by the majority) would violate the separation of powers and be an unconstitutional delegation of legislative power.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue | Legislature alleges a special injury: statutory right under EMA to approve/deny 28-day extensions was nullified, so it has standing | Governor contends Legislature lacks standing to challenge executive orders | Tukel: Legislature has standing — it alleged a special, unique injury and the statutory scheme implies Legislature intended judicial recourse |
| Whether EPGA or EMA governs epidemics | Legislature: EMA controls epidemics; inclusion of "epidemic" in EMA shows EPGA was not meant to cover epidemics; EMA’s 28-day limit therefore applies | Governor: EPGA already covered epidemics; EMA §17(d) preserves EPGA authority so governor may act without the 28-day legislative-approval limit | Tukel: In pari materia and anti-surplusage canons show EPGA does not apply to epidemics; EMA’s 28-day limit governs extensions |
| Effect of EMA §17(d) ("shall not be construed to...") | Legislature: §17(d) does not override ordinary canons; it preserves the governor’s power to proclaim but does not negate EMA’s durational/approval rules for epidemics | Governor: §17(d) preserves and protects EPGA authority and prevents reading EMA to limit governor’s prior powers | Tukel: §17(d)’s reference to proclamations doesn’t negate EMA’s durational scheme; ordinary canons (in pari materia, expressio unius, avoid surplusage) control and show EMA limits apply |
| Constitutionality / delegation and separation of powers | Legislature: if EPGA allowed unlimited, indefinite unilateral legislation by governor, that would be unconstitutional | Governor: statute is constitutional; emergency delegation is necessary and standards are as precise as the subject requires | Tukel: As interpreted by majority (unlimited subject matter and duration), EPGA effectuates an unconstitutional delegation—it vests legislative power in the governor and lacks adequate durational limits; but statutory resolution (EMA controls) would avoid reaching the constitutional question |
Key Cases Cited
- Mistretta v. United States, 488 U.S. 361 (U.S. 1989) (articulates separation-of-powers principle informing review of interbranch power allocations)
- National Wildlife Federation v. Cleveland Cliffs Iron Co., 471 Mich. 608 (Mich. 2004) (on separation of powers and limits on judicial role in political questions)
- House Speaker v. Governor, 443 Mich. 560 (Mich. 1993) (standing and judicial authority to interpret State Constitution)
- Lansing Sch. Ed. Ass'n v. Lansing Bd. of Ed., 487 Mich. 349 (Mich. 2010) (standing for declaratory relief and MCR 2.605 principles)
- Blue Cross & Blue Shield of Mich. v. Milliken, 422 Mich. 1 (Mich. 1985) (framework for evaluating unconstitutional delegation of legislative power)
- Apsey v. Memorial Hosp., 477 Mich. 120 (Mich. 2007) (canon against treating statutory language as surplusage)
- People v. Buehler, 477 Mich. 18 (Mich. 2007) (more-recent or more-specific statute controls in pari materia)
- Rivers v. Roadway Express, Inc., 511 U.S. 298 (U.S. 1994) (judicial statutory construction declares what a statute has meant since enactment)
- Jacobson v. Massachusetts, 197 U.S. 11 (U.S. 1905) (governmental public-health powers during epidemics)
- King v. Concordia Fire-Ins. Co., 140 Mich. 258 (Mich. 1905) (distinguishes permissible delegation to find facts from unlawful delegation to make law)