In re CERTIFIED QUESTIONS FROM THE UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION (MIDWEST INSTITUTE OF HEALTH, PLLC v GOVERNOR)
Docket No. 161492
Michigan Supreme Court
October 2, 2020
Argued on request to answer certified questions September 9, 2020. Decided October 2, 2020. Chief Justice: Bridget M. McCormack. Chief Justice Pro Tem: David F. Viviano. Justices: Stephen J. Markman, Brian K. Zahra, Richard H. Bernstein, Elizabeth T. Clement, Megan K. Cavanagh. Reporter of Decisions: Kathryn L. Loomis.
Syllabus
This syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.
Midwest Institute of Health, PLLC; Wellston Medical Center, PLLC; Primary Health Services, PC; and Jeffery Gulick brought an action in the United States District Court for the Western District of Michigan against the Governor of Michigan, the Michigan Attorney General, and the Michigan Department of Health and Human Services Director, challenging the Governor’s Executive Order (EO) No. 2020-17, which prohibited healthcare providers from performing nonessential procedures. The order was issued by Governor Gretchen Whitmer as part of a series of executive orders issued in response to the COVID-19 pandemic. On March 10, 2020, the Governor issued EO 2020-04, declaring a “state of emergency” under the Emergency Powers of the Governor Act of 1945 (the EPGA),
- Whether, under the Emergency Powers of the Governor Act,
MCL § 10.31 , et seq., or the Emergency Management Act,MCL § 30.401 , et seq., Governor Whitmer has the authority after April 30, 2020 to issue or renew any executive orders related to the COVID-19 pandemic. - Whether the Emergency Powers of the Governor Act and/or the Emergency Management Act violates the Separation of Powers and/or the Non-Delegation Clauses of the Michigan Constitution.
The Michigan Supreme Court ordered and heard oral argument on the certified questions. 505 Mich ___ (2020).
The Michigan Supreme Court, in opinions by Justice MARKMAN, Chief Justice MCCORMACK, Justice VIVIANO, and Justice BERNSTEIN, unanimously held:
The first certified question is partially answered in the negative: The Governor did not have authority after April 30, 2020, to issue or renew any executive orders related to the COVID-19 pandemic under the EMA.
The Michigan Supreme Court, in an opinion by Justice MARKMAN joined in full by Justices ZAHRA and CLEMENT and joined as to Parts III(A), (B), (C)(2), and IV by Justice VIVIANO, further held:
The second certified question is partially answered in the affirmative: The Governor did not possess the authority to exercise emergency powers under the EPGA because the act unlawfully delegates legislative power to the executive branch in violation of the Michigan Constitution.
Justice MARKMAN, joined by Justices ZAHRA and CLEMENT, concluded that the Governor lacked the authority to declare a “state of emergency” or a “state of disaster” under the EMA after April 30, 2020, on the basis of the COVID-19 pandemic and that the EPGA violated the Michigan Constitution because it delegated to the executive branch the legislative powers of state government and allowed the executive branch to exercise those powers indefinitely. First, under the EMA, the Governor only possessed the authority or obligation to declare a state of emergency or state of disaster once and then had to terminate that declaration when the Legislature did not authorize an extension; the Governor possessed no authority to redeclare the same state of emergency or state of disaster and thereby avoid the Legislature’s limitation on her authority. Second, regarding the statutory language of the EPGA, plaintiffs’ argument that an emergency must be short-lived and the Legislature’s argument that the EPGA was only intended to address local emergencies were textually unconvincing. And while the EPGA only allows the Governor to declare a state of emergency when public safety is imperiled, public-health emergencies such as the COVID-19 pandemic can be said to imperil public safety. Third, as the scope of the powers conferred upon the Governor by the Legislature becomes increasingly broad, in regard to both the subject matter and their duration, the standards imposed upon the Governor’s discretion by the Legislature must correspondingly become more detailed and precise.
Justice VIVIANO, concurring in part and dissenting in part, joined Justice MARKMAN’S opinion to the extent that it concluded that the certified questions should be answered, held that the Governor’s executive orders issued after April 30, 2020, were not valid under the EMA, and held that the EPGA, as construed by the majority in Justice MARKMAN’S opinion, constituted an unconstitutional delegation of legislative power. Justice VIVIANO would have concluded that the EPGA, which only allows the Governor to declare a state of emergency when public safety is imperiled, does not allow for declarations of emergency to confront public-health events like pandemics because “public health” and “public safety” are not synonymous and, in light of this conclusion resolving the issue on statutory grounds, would not have decided the constitutional question whether the EPGA violates the separation of powers. However, because the rest of the Court interpreted the statute more broadly, Justice VIVIANO addressed the constitutional issue and joined Justice MARKMAN’S holding that the EPGA is an unconstitutional delegation of legislative power. Justice VIVIANO also indicated that in an appropriate future case, he would consider adopting the approach to nondelegation advocated by Justice Gorsuch in Gundy v United States, 588 US ___, ___; 139 S Ct 2116, 2131 (2019) (Gorsuch, J., dissenting).
Chief Justice MCCORMACK, joined by Justices BERNSTEIN and CAVANAGH, concurring in part and dissenting in part, concurred with Justice MARKMAN’S opinion to the extent that it concluded that the certified questions should be answered; held that the Governor’s executive orders issued after April 30, 2020, were not valid under the EMA; and rejected plaintiffs’ statutory arguments that the EPGA did not authorize the Governor’s executive orders. However, Chief Justice MCCORMACK dissented from the majority’s constitutional ruling striking down the EPGA. The United States Supreme Court and the Michigan Supreme Court have struck down statutes under the nondelegation doctrine only when the statutes contain no standards to guide the decision-maker’s discretion, and the delegation in the EPGA had standards—for the Governor to invoke the EPGA, her actions must be “reasonable” and “necessary,” they must “protect life and property” or “bring the emergency situation . . . under control,” and they may be taken only at a time of “public emergency” or “reasonable apprehension of immediate danger” when “public safety is imperiled.” Those standards were as reasonably precise as the statute’s subject matter permitted. Accordingly, the delegation in the EPGA did not violate the nondelegation doctrine.
Justice BERNSTEIN, concurring in part and dissenting in part, disagreed with the majority’s conclusion that the EPGA is unconstitutional. An examination of caselaw from both the Michigan Supreme Court and the United States Supreme Court supported the conclusion that, under current law, the grant of power in the EPGA does not offend the separation of powers. Justice BERNSTEIN would continue to apply the “standards” test that the Michigan Supreme Court has consistently used to analyze nondelegation challenges, would leave the decision whether to revisit the nondelegation doctrine to the United States Supreme Court, and would leave to the people of Michigan the right to mount challenges to individual orders issued under the EPGA.
©2020 State of Michigan
In re CERTIFIED QUESTIONS FROM THE UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION
MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, and JEFFERY GULICK, Plaintiffs, v GOVERNOR OF MICHIGAN, MICHIGAN ATTORNEY GENERAL, and MICHIGAN DEPARTMENT OF HEALTH AND HUMAN SERVICES DIRECTOR, Defendants.
No. 161492
USDC-WD: 1:20-cv-414
STATE OF MICHIGAN SUPREME COURT
FILED October 2, 2020
OPINION
BEFORE THE ENTIRE BENCH
This case concerns the nature and scope of our state’s public response to one of the most threatening public-health crises of modern times. In response to a global, national, and state outbreak of the severe acute respiratory disease named COVID-19, Michigan’s Governor has issued a succession of executive orders over the past six months limiting public and private gatherings, closing and imposing restrictions upon certain businesses, and regulating a broad variety of other aspects of the day-to-day lives of our state’s citizens in an effort to contain the spread of this contagious and sometimes deadly disease.
The ongoing validity of these executive orders has been the subject of much public debate as well as litigation in both state and federal courts. In the interest of comity, the United States District Court for the Western District of Michigan has asked this Court to resolve critical questions concerning the constitutional and legal authority of the Governor to issue such orders. We hereby respond to the federal court in the affirmative by choosing to answer the questions the federal court has certified, concluding as follows: first, the Governor did not possess the authority under the Emergency Management Act of 1976 (the EMA),
I. FACTS & HISTORY
The coronavirus (COVID-19) is a respiratory disease that can result, and has resulted, in significant numbers of persons suffering serious illness or death. In response to COVID-19, on March 10, 2020, one day before it was declared a pandemic by the World Health Organization, the Governor issued Executive Order (EO) No. 2020-04, declaring a “state of emergency” under the EPGA and the EMA. On March 20, 2020, the Governor issued EO 2020-17, which prohibited medical providers from performing nonessential procedures. On March 23, 2020, she issued EO 2020-21, which ordered all residents to stay at home with limited exceptions. On April 1, 2020, she issued EO 2020-33, which declared a “state of emergency” under the EPGA and a “state of emergency” and “state of disaster” under the EMA. She then requested that the Legislature extend the state of emergency and state of disaster by 70 days, and a resolution was
On April 30, 2020, the Governor issued EO 2020-66, which terminated the declaration of a state of emergency and state of disaster under the EMA. But, immediately thereafter, she issued EO 2020-67, which provided that a state of emergency remained declared under the EPGA. At the same time, she issued EO 2020-68, which redeclared a state of emergency and state of disaster under the EMA.2 Although the Governor subsequently lifted the ban on nonessential medical procedures, she then issued EO 2020-97, which imposed numerous obligations on healthcare providers, including specific waiting-room procedures, limitations on the number of patient appointments, adding special hours for highly vulnerable patients, and establishing enhanced telehealth and telemedicine procedures.3
Plaintiffs in the underlying federal case are healthcare providers that were prohibited from performing nonessential procedures while EO 2020-17 was in effect and a patient who was prohibited from undergoing knee-replacement surgery. Defendants are the Governor, the Attorney General, and the Director of the Michigan Department of Health and Human Services. Although EO 2020-17 has been rescinded, the federal district court held that the case is not moot because at that time EO 2020-114 (now EO 2020-184) continued to impose restrictions on healthcare providers. After the federal district court decided to certify the questions to this Court, defendants moved for reconsideration,
raising-- for the first time-- Eleventh Amendment immunity. The federal district court denied this motion and held that defendants had waived such immunity by not timely raising it in either the principal briefs of their motions to dismiss or in their initial responses to the court’s invitation to brief the propriety of certification to this Court. Defendants appealed that ruling, and the matter remains pending in the United States Court of Appeals for the Sixth Circuit.
The federal district court has asked this Court to address two certified questions: (1) whether, under the EMA or the EPGA, the Governor has had the authority after April 30, 2020, to issue or renew any executive orders related to the COVID-19 pandemic; and (2) whether the EPGA and/or the EMA violate the Separation of Powers and/or the Nondelegation Clauses of the Michigan Constitution. We heard oral argument on these questions on September 9, 2020.
II. STANDARD OF REVIEW
“Matters of constitutional and statutory interpretation are reviewed de novo.” People v Skinner, 502 Mich 89, 99; 917 NW2d 292 (2018). ” ‘[S]tatutes are presumed to be constitutional, and we have a duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent.’ ” Id. at 100, quoting In re Sanders, 495 Mich 394, 404; 852 NW2d 524 (2014), in turn citing Taylor v Gate Pharm, 468 Mich 1, 6; 658 NW2d 127 (2003).
A. CERTIFIED QUESTIONS
MCR 7.308(A)(2)(a) provides:
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.
MCR 7.308(A)(5) provides:
The Supreme Court may deny the request for a certified question by order, issue a peremptory order, or render a decision in the ordinary form of an opinion to be published with other opinions of the Court. The clerk shall send a paper copy or provide electronic notice of the Court’s decision to the certifying court.
Defendants argue that we should not answer the certified questions, both because the case is moot4 and because defendants are entitled to Eleventh Amendment immunity.5 The
federal district court held that the case is not moot because although nonessential medical procedures are no longer prohibited, plaintiffs remain subject to many restrictions, including in particular those pertaining to the number of appointments they can schedule on a daily basis. The federal district court also held that defendants had waived Eleventh Amendment immunity by waiting to raise this issue until their motion for reconsideration.
We agree with plaintiffs that this Court should not address-- much less second-guess-- the federal district court’s decision to certify certain questions to this Court and not to certify others. Both mootness and Eleventh Amendment immunity are matters that fall within the jurisdiction of the federal courts, and neither matter is included within the federal court’s certified questions. And those matters this Court is best equipped to answer are precisely those the federal court has certified. Therefore, those are the questions we will answer herein.
The first question before this Court is whether the Governor possessed the authority under the EMA to renew her declaration of a state of emergency and state of disaster based
on the COVID-19 pandemic after April 30, 2020.6
(3) The governor shall, by executive order or proclamation, declare a state of disaster if he or she finds a disaster has occurred or the threat of a disaster exists. The state of disaster shall continue until the governor finds that the threat or danger has passed, the disaster has been dealt with to the extent that disaster conditions no longer exist, or until the declared state of disaster has been in effect for 28 days. After 28 days, the governor shall issue an executive order or proclamation declaring the state of disaster terminated, unless a request by the governor for an extension of the state of disaster for a specific number of days is approved by resolution of both houses of the legislature. . . .
(4) The governor shall, by executive order or proclamation, declare a state of emergency if he or she finds that an emergency has occurred or that the threat of an emergency exists. The state of emergency shall continue 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. After 28 days, the governor shall issue an executive order or proclamation declaring the state of emergency terminated, unless a request by the governor for an extension of the state of emergency for a specific number of
days is approved by resolution of both houses of the legislature. [Emphasis added.]
Critically,
The Governor argues that because
possesses the authority or obligation to declare a state of emergency or state of disaster once and then must terminate that declaration after 28 days if the Legislature has not authorized an extension. The Governor possesses no authority-- much less obligation-- to redeclare the same state of emergency or state of disaster and thereby avoid the Legislature’s limitation on her authority under the EMA. As the Court of Claims correctly stated in Mich House of Representatives v Governor,7 unpublished opinion of the Court of Claims, issued May 21, 2020 (Docket No. 20-000079-MZ); slip op at 23-24:
[A]t the end of the 28 days, the EMA contemplates only two outcomes: (1) the state of emergency and/or disaster is terminated by order of the Governor; or (2) the state of emergency/disaster continues with legislative approval. The only qualifier on the “shall terminate” language is an affirmative grant
of an extension from the Legislature. There is no third option for the Governor to continue the state of emergency and/or disaster on her own, absent legislative approval. . . . To adopt the Governor’s interpretation of the statute would render nugatory the express 28-day limit
and it would require the Court to ignore the plain statutory language.
Furthermore, and contrary to the Governor’s argument, the 28-day limitation in the EMA does not amount to an impermissible “legislative veto.”8 Once again,
As the Court of Claims again correctly explained in Mich House of Representatives v Governor, unpublished opinion of the Court of Claims, issued May 21, 2020 (Docket No. 20-000079-MZ); slip op at 25, “The Legislature has not ‘vetoed’ or negated any action by the executive branch by imposing a temporal limit on the Governor’s authority; instead, it limited the amount of time the Governor can act independently of the Legislature in response to a particular emergent matter.” Indeed, Immigration & Naturalization Serv v Chadha, 462 US 919, 955 n 19; 103 S Ct 2764; 77 L Ed 2d 317 (1983), itself expressly recognized that “durational limits on authorizations . . . lie well within Congress’ constitutional power.” That is exactly what the 28-day limitation establishes-- a durational limitation on an authorization. Nothing prohibits the Legislature from placing such a limitation on authority delegated to the Governor, and such a limitation does not render illusory in any way the delegation itself.
For these reasons, we conclude that the Governor did not possess the authority under the EMA to renew her declaration of a state of emergency or state of disaster based on the COVID-19 pandemic after April 30, 2020.9
C. THE EPGA
The second question before this Court is whether the Governor possessed the authority under the EPGA to proclaim a state of emergency based on the COVID-19 pandemic after April 30, 2020.
During times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state, or reasonable apprehension of immediate danger of a public emergency of that kind, when public safety is imperiled, either upon application of the mayor of a city, sheriff of a county, or the commissioner of the Michigan state police or 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. Those 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.
The orders, rules, and regulations promulgated under subsection (1) are effective from the date and in the manner prescribed in the orders, rules, and regulations and shall be made public as provided in the orders, rules, and regulations. The orders, rules, and regulations may be amended, modified, or rescinded, in the manner in which they were promulgated, from time to time by the governor during the pendency of the emergency, but shall cease to be in effect upon declaration by the governor that the emergency no longer exists.
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.10
Plaintiffs argue that a genuine emergency must necessarily be short-lived and that because our state has been dealing with COVID-19 for more than six months, it is no longer an emergency. We respectfully disagree. “Emergency” is defined as “an urgent need for assistance or relief.” Merriam-Webster’s Collegiate Dictionary
Furthermore, the Legislature argues that the EPGA only encompasses local-- not statewide-- emergencies. It relies on the fact that the EPGA refers to a public emergency “within the state,”
of.” Merriam-Webster’s Collegiate Dictionary (11th ed). A statewide emergency is an emergency “within the inside of the state,” with the entirety of Michigan’s counties, cities, and townships fairly described as being located “within the inside of the state.”
The Legislature also argues that the EPGA’s references to the “area involved,” the “affected area,” “any section of the area,” and “specific zones within the area” signify that the EPGA was only intended to apply to local emergencies. Again, we disagree and do not find this to be a reasonable understanding of the EPGA. “Area” is defined as “a geographic region.” Merriam-Webster’s Collegiate Dictionary (11th ed). The “area involved” or the “affected area” may comprise the entire state, or it may comprise some more localized geographical part of the state. Indeed, the EMA, which all agree is applicable to statewide emergencies such as the present pandemic, also refers repeatedly to the “threatened area.” See
Additionally, both plaintiffs and the Legislature argue that the historical context of the EPGA, enacted in 1945 in response to riots in Detroit in 1943, suggests that it was
intended to apply only to local emergencies. However, even if an undisputed or a principal purpose of the EPGA was to enable the Governor to respond to a local emergency such as a riot, that does not indicate that enabling the Governor to respond to a local emergency was the EPGA’s exclusive purpose. “[T]he remedy [of a legal provision] often extends beyond the particular act or mischief which first suggested the necessity of the law.” Dist of Columbia v Heller, 554 US 570, 578; 128 S Ct 2783; 171 L Ed 2d 637 (2008) (quotation marks and citations omitted). That is, historical context and rationale, while often helpful in giving reasonable meaning to a statute, cannot ultimately take priority over its actual language. What is dispositive here is that the actual terms of the EPGA do
In House of Representatives v Governor, ___ Mich App ___; ___ NW2d ___ (2020) (Docket No. 353655) (TUKEL, J., concurring in part and dissenting in part); slip op at 3, Judge TUKEL concluded in a thoughtful dissent that “at least in a case such as this involving an ‘epidemic,’ . . . the EMA’s 28-day time limit controls.” He relied on the fact that the definition of “disaster” within the EMA includes an “epidemic” while the EPGA does not include that term. However, the definition of “disaster” within the EMA includes a variety of examples of types of disasters, and if all of those types of disasters were excluded from the EPGA using Judge TUKEL’s reasoning, the EPGA would be effectively rendered a nullity,12 running afoul of the interpretive maxim that “a court should avoid a construction
that would render any part of the statute surplusage or nugatory. In re MCI Telecom Complaint, 460 Mich 396, 414; 596 NW2d 164 (1999). Such an understanding of the EPGA would also run afoul of the EMA, which provides, in pertinent part:
This act shall not be construed to do any of the following:
* * *
(d) Limit, modify, or abridge the authority of the governor to proclaim a state of emergency pursuant to [the EPGA] or exercise any other powers vested in him or her under the state constitution of 1963, statutes, or common law of this state independent of, or in conjunction with, this act. [
MCL 30.417 .]
To rely on the inclusion of the word “epidemic” within the EMA to conclude that the EPGA does not apply, or that the 28-day limitation of the EMA does apply to the EPGA, would, in our judgment, be to construe the EMA to “[l]imit, modify, or abridge the authority of the governor” under the EPGA, which is prohibited by
Finally, Justice VIVIANO concludes after a thorough and considered analysis that the EPGA does not apply “in the sphere of public health generally or to an epidemic like transportation accident, hazardous materials incident, epidemic, air contamination, blight, drought, infestation, explosion, or hostile military action or paramilitary action, or similar occurrences resulting from terrorist activities, riots, or civil disorders.”
COVID-19 in particular” because the EPGA only allows the Governor to declare a state of emergency “when public safety is imperiled,”
The people of this state, as well as their public officials, deserve to be able to read and to comprehend their own laws. See, e.g., Garg v Macomb Co Community Mental Health Servs, 472 Mich 263, 284 n 10; 696 NW2d 646 (2005) (“[L]aws are also made more accessible to the people when each of them is able to read the law and thereby understand his or her rights and responsibilities. When the words of the law bear little or no relationship to what courts say the law means . . . , then the law increasingly becomes the exclusive province of lawyers and judges.“); Robinson v Detroit, 462 Mich 439, 467; 613 NW2d 307 (2000) (“[I]f the words of the statute are clear, the actor should be able to expect, that is, rely, that they will be carried out by all in society, including the courts.“). As Justice COOLEY once explained:
[Courts] may give a sensible and reasonable interpretation to legislative expressions which are obscure, but they have no right to distort those which are clear and intelligible. The fair and natural import of the terms employed, in view of the subject matter of the law, is what should govern[.] [People ex rel Twitchell v Blodgett, 13 Mich 127, 167-168 (1865).]
See also
Once again, “[t]his Court “must presume a statute is constitutional and construe it as such, unless the only proper construction renders the statute unconstitutional.” ” Grebner v State, 480 Mich 939, 940 (2007) (citation omitted). Accordingly, “assuming that there are two reasonable ways of interpreting [a statute]-- one that renders the statute unconstitutional and one that renders it constitutional-- we should choose the interpretation that renders the statute constitutional.” Skinner, 502 Mich at 110-111 (emphasis added). However, we are not prepared to rewrite the EPGA or to construe it in an overly narrow or strained manner to avoid rendering it unconstitutional under the nondelegation doctrine or any other constitutional doctrine.16 To do so would read the EPGA in a way that does not reflect the genuine intentions of the statute‘s framers, an approach that would be in ironic conflict with the fundamental premise of the nondelegation doctrine itself, which is that the laws of our state are to be determined by the Legislature. For these reasons, we conclude that there is one predominant and reasonable construction of the EPGA-- the construction given to it by the Governor. This is not to say, however, that the construction advanced by the Governor and the other defendants renders the EPGA a constitutionally permissible delegation of legislative power to the executive. To the contrary, while the EPGA purports to grant the Governor the power to proclaim a state of emergency based on the COVID-19 pandemic, and accordingly to exercise broad emergency powers, the EPGA by that very construction stands in violation of the Michigan Constitution.
2. NONDELEGATION DOCTRINE
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.
“[T]he principal function of the separation of powers . . . is to . . . protect individual liberty[.]” Clinton v City of New York, 524 US 417, 482; 118 S Ct 2091; 141 L Ed 2d 393 (1998) (Breyer, J., dissenting). ” ‘[T]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the
“Strictly speaking, there is no acceptable delegation of legislative power.” Mistretta v United States, 488 US 361, 419; 109 S Ct 647; 102 L Ed 2d 714 (1989) (Scalia, J., dissenting). “The true distinction . . . is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.” Marshall Field & Co v Clark, 143 US 649, 693-694; 12 S Ct 495; 36 L Ed 294 (1892) (quotation marks and citation omitted). “[A] certain degree of discretion, and thus of lawmaking, inheres in most executive or judicial action . . . .” Mistretta, 488 US at 417 (Scalia, J., dissenting). “The focus of controversy . . . has been whether the degree of generality contained in the authorization for exercise of executive or judicial powers in a particular field is so unacceptably high as to amount to a delegation of legislative powers.” Id. at 419.
We have explained that “[c]hallenges of unconstitutional delegation of legislative power are generally framed in terms of the adequacy of the standards fashioned by the Legislature to channel the agency‘s or individual‘s exercise of the delegated power.” Blue Cross & Blue Shield of Mich v Milliken, 422 Mich 1, 51; 367 NW2d 1 (1985). “The preciseness required of the standards will depend on the complexity of the subject.” Id. “In making this determination whether the statute contains sufficient limits or standards we must be mindful of the fact that such standards must be sufficiently broad to permit efficient administration in order to properly carry out the policy of the Legislature but not so broad as to leave the people unprotected from uncontrolled, arbitrary power in the hands of administrative officials.” Dep‘t of Natural Resources v Seaman, 396 Mich 299, 308-309; 240 NW2d 206 (1976). “[T]he standards prescribed for guidance [must be] as reasonably
The United States Supreme Court17 has explained that “[s]o long as Congress ‘shall lay down by legislative act an intelligible principle to which the person or body authorized to exercise the delegated authority is directed to conform, such legislative action is not a forbidden delegation of legislative power.’ ” Mistretta, 488 US at 372, quoting J W Hampton, Jr & Co v United States, 276 US 394, 409; 48 S Ct 348; 72 L Ed 624 (1928) (brackets omitted).18 That is, “[t]he constitutional question is whether Congress has supplied an intelligible principle to guide the delegee‘s use of discretion.” Gundy v United States, 588 US ___, ___; 139 S Ct 2116, 2123; 204 L Ed 2d 522 (2019) (opinion by Kagan, J.). “[T]he answer requires construing the challenged statute to figure out what task it delegates and what instructions it provides.” Id.
The scope of the delegation is also relevant when assessing the sufficiency of the standards. “[T]he degree of agency discretion that is acceptable varies according to the scope of the power . . . conferred.” Whitman v American Trucking Associations, Inc, 531 US 457, 475; 121 S Ct 903; 149 L Ed 2d 1 (2001). Consequently, “the ultimate judgment regarding the constitutionality of a delegation must be made not on the basis of the scope of the power alone, but on the basis of its scope plus the specificity of the standards governing its exercise. When the scope increases to immense proportions . . . the standards must be correspondingly more precise.” Synar v United States, 626 F Supp 1374, 1386 (D DC, 1986). See also Int‘l Refugee Assistance Project v Trump, 883 F3d 233, 293 (CA 4, 2018) (Gregory, C.J., concurring) (“When broad power is delegated with few or no constraints, the risk of an unconstitutional delegation is at its peak. . . . Therefore, whether a delegation is unconstitutional depends on two factors—the amount of discretion and the scope of authority.“), vacated by Trump v Int‘l Refugee Assistance Project, 585 US ___; 138 S Ct 2710 (2018). As the federal Court of Appeals for the District of Columbia Circuit has recognized in a series of cases, a critical component of the scope of the delegated “power” is the breadth of subjects to which the power can be applied:
But petitioners have ignored a limit to the nondelegation doctrine that we relied
on in American Trucking and even more emphatically in its immediate precursor, International Union, UAW v. OSHA (“Lockout/Tagout I“), 938 F.2d 1310 (D.C.Cir.1991). There we noted that the scope of the agency‘s “claimed power to roam” was “immense, encompassing all American enterprise.” Id. at 1317. Quoting verbatim from Synar v. United States, 626 F.Supp. 1374, 1383 (D.D.C.1986) (three-judge panel), aff‘d sub nom. Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986), we said, “When the scope increases to immense proportions, as in [Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935) ], the standards must be correspondingly more precise.” Lockout/Tagout I, 938 F.2d at 1317. We noted that a mass of cases in courts had upheld delegations of effectively standardless discretion, and distinguished them precisely on the ground of the narrower scope within which the agencies could deploy that discretion. Id. [Michigan v US Environmental Protection Agency, 341 US App DC 306, 323; 213 F3d 663 (2000) (brackets in original).]
In other words, it is one thing if a statute confers a great degree of discretion, i.e., power, over a narrow subject; it is quite another if that power can be brought to bear on something as “immense” as an entire economy. See Schechter Poultry Corp v United States, 295 US 495, 539; 55 S Ct 837; 79 L Ed 1570 (1935) (striking down a delegation to the President to approve trade standards when the “authority relates to a host of different trades and industries, thus extending the President‘s discretion to all the varieties of laws which he may deem to be beneficial in dealing with the vast array of commercial and industrial activities throughout the country“). Furthermore, “[t]he area of permissible indefiniteness narrows . . . when the regulation invokes criminal sanctions and potentially affects fundamental rights . . . .” United States v Robel, 389 US 258, 275; 88 S Ct 419; 19 L Ed 2d 508 (1967) (Brennan, J., concurring in the result).
Finally, the durational scope of the delegated power also has some relevant bearing, in our judgment, on whether the statute violates the nondelegation doctrine. Of course, an unconstitutional delegation is no less unconstitutional because it lasts for only two days. But it is also true, as common sense would suggest, that the conferral of indefinite authority accords a greater accumulation of power than does the grant of temporary authority. Courts have recognized this consideration, although they have also acknowledged that it is not often dispositive. In Gundy, for example, the plurality thought it relevant to the delegation analysis in that case that the statute accorded the executive “only temporary authority.” Gundy, 588 US at ___; 139 S Ct at 2130; see also United States v Touby, 909 F2d 759, 767 (CA 3, 1990) (“[I]t was reasonable for Congress to broadly delegate special authority to the Attorney General, particularly when the delegation permits scheduling to be effective only for a limited period of time.“); United States v Emerson, 846 F2d 541, 545 (CA 9, 1988) (upholding delegation because, in part, the delegated power was temporary); Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO v Connally, 337 F Supp 737, 754 (D DC, 1971) (“It is also material, though not dispositive, to note the limited time frame established by Congress for the stabilization authority delegated to the President.“); Marran v Baird, 635 A2d 1174, 1181 (RI, 1994) (upholding a delegation because, in part, the danger of “administrative abuse” was diminished given
It is therefore impossible to ascertain whether the standards set forth in the EPGA that guide the Governor‘s discretionary exercise of her emergency powers satisfy the nondelegation doctrine without first assessing the precise scope of these powers. Simply put, as the scope of the powers conferred upon the Governor by the Legislature becomes increasingly broad, in regard to both the subject matter and their duration, the standards imposed upon the Governor‘s discretion by the Legislature must correspondingly become more detailed and precise.
a. SCOPE OF DELEGATED POWER
Concerning the subject matter of the emergency powers conferred by the EPGA, it is remarkably broad, authorizing the Governor to enter orders “to protect life and property or to bring the emergency situation within the affected area under control.”
To illustrate the breadth of the emergency powers contemplated by the EPGA, we note that during the COVID-19 pandemic the Governor has, by way of executive orders specifically issued under the EPGA, effected the following public policies: requiring all residents to stay home with limited exceptions; requiring all residents to 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, including requiring children to wear face coverings while playing sports; requiring all residents to remain at least six feet away from people outside one‘s household to the extent feasible under the circumstances; requiring businesses to comply with numerous workplace safeguards, including daily health screenings of employees; closing restaurants, food courts, cafes, coffeehouses, bars, taverns, brew pubs, breweries, microbreweries, distilleries, wineries, tasting rooms, clubs, hookah bars, cigar bars, vaping lounges, barbershops, hair salons, nail salons, tanning salons, tattoo parlors, schools, churches, theaters, cinemas, libraries, museums, gymnasiums, fitness centers, public swimming pools, recreation centers, indoor sports facilities, indoor exercise facilities, exercise studios, spas, casinos, and racetracks; closing places of public amusement, including arcades, bingo halls, bowling alleys, indoor climbing facilities, skating rinks, and trampoline parks; prohibiting nonessential travel, in-person work that is not necessary to sustain or protect life, and nonessential in-person business operations; prohibiting the sale of
b. DURATION OF DELEGATED POWER
Concerning the duration of the emergency powers conferred by the EPGA, those powers may be exercised until a “declaration by the governor that the emergency no longer exists.”
c. STANDARDS OF DELEGATED POWER
It is against the above backdrop that the constitutionality of the standards, or legislative direction to the executive branch, set forth in the EPGA must be considered. What standards or legislative direction are sufficient to transform a delegation of power in which what is being delegated consists of pure legislative policymaking power into a delegation in which what is being delegated has been made an essentially executive “carrying-out of policy” power
Concerning the term “reasonableness,” that word places a largely (if not entirely) illusory limitation upon the Governor‘s discretion because the Legislature is presumed not to delegate the authority to act unreasonably in the first place. In this regard, in Mich Farm Bureau v Bureau of Workmen‘s Compensation, 408 Mich 141; 289 NW2d 699 (1980), we explained that an administrative rule is valid ” ‘if it is (a) within the granted power, (b) issued pursuant to proper procedure, and (c) reasonable. The requirement of reasonableness stems both from the idea of constitutional due process and from the idea of statutory interpretation that legislative bodies are assumed to intend to avoid the delegation of power to act unreasonably.’ ” Id. at 149, quoting 1 Davis, Administrative Law, § 5.03, p 299. See also American Radio Relay League, Inc v Fed Communications Comm, 199 US App DC 293, 297; 617 F2d 875 (1980) (“We fail to find significance in the fact that Congress said ‘reasonable regulations’ instead of simply ‘regulations.’ . . . Here, the word ‘reasonable’ clearly is nothing more than surplusage, for we cannot assume that Congress would ever intend anything other than reasonable agency action.“). Although those cases addressed delegated agency powers, we see no reason why the same principle would not apply to all powers delegated to the executive. Accordingly, the reference in
Concerning the term “necessary,” that word means “absolutely needed : REQUIRED.” Merriam-Webster‘s Collegiate Dictionary (11th ed). Given the exceptionally broad scope of the EPGA, which authorizes indefinite orders that are “necessary to protect life and property,” we believe that such a standard is also insufficient to satisfy the nondelegation doctrine when considered both in isolation and alongside the word “reasonable.” It is elementary that “life” and “property” may be threatened by a virtually unlimited array of conduct, circumstances, and serendipitous occurrences. A person driving on the road instead of staying inside at home, for example, may fairly be understood as posing a threat to “life” and “property” because there is perpetual risk that he or she will be involved in an automobile accident. Thus, the Governor under the EPGA may find that an order prohibiting a person from driving is warranted merely on the basis of this rationale. The contagions, accidents, misfortunes, risks, and acts of God, ordinarily and inevitably associated with the human condition and with our everyday social experiences, are simply too various for this standard to supply any meaningful limitation upon the exercise of
In this regard, we also find illuminating an advisory opinion written in the midst of World War II by the Supreme Judicial Court of Massachusetts. Opinion of the Justices, 315 Mass 761; 52 NE2d 974 (1944). The statute at issue was a wartime measure allowing the governor to ” ‘have and . . . [to] exercise any and all authority over persons and property, necessary or expedient for meeting the supreme emergency of such a state of war,’ ” as consistent with the state constitution. Id. at 766, citing Mass Acts of 1942, ch 13, special session. The question posed was whether this statute allowed the governor to modify statutes establishing the date of state primaries so as to allow soldiers to vote. Id. at 765. The majority recognized that this statute would allow the governor “to render inoperative any law inconsistent with” his orders and to wield “all authority of every kind over persons or property which it could constitutionally confer upon him by specific enactments wherein the precise powers intended to be granted and the manner of their exercise should be particularly stated, subject only to the limitation that the action taken by the Governor shall be ‘necessary or expedient for meeting the supreme emergency’ of war.” Id. at 767. The majority did not believe that the state constitution allowed the Legislature to confer upon the governor “a roving commission to repeal or amend by executive order unspecified provisions included anywhere in the entire body of” state law. Id. The standard given in the statute-- “necessary” and “expedient’ for the war “emergency“-- was “a limitation so elastic that it is impossible to imagine what
The consequence of such illusory “non-standard” standards in this case is that the Governor possesses free rein to exercise a substantial part of our state and local legislative authority-- including police powers-- for an indefinite period of time. There is, in other words, nothing within either the “necessary” or “reasonable” standards that serves in any realistic way to transform an otherwise impermissible delegation of legislative power into a permissible delegation of executive power. This is particularly true in the specific context of the EPGA, a statute that delegates power of immense breadth and is devoid of all temporal limitations. These facets of the EPGA-- its expansiveness, its indefinite duration, and its inadequate standards-- are simply insufficient to sustain this delegation. While, in the context of a less-encompassing delegation, the standard might be sufficient to sustain the delegation, that is not the case the Court entertains today.
We accordingly conclude that the delegation of power to the Governor to “promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property,”
d. SEVERABILITY
Having reached this conclusion, we must then address whether the unlawful
In the construction of the statutes of this state the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the legislature, that is to say:
If any portion of an act or the application thereof to any person or circumstances shall be found to be invalid by a court, such invalidity shall not affect the remaining portions or applications of the act which can be given
effect without the invalid portion or application, provided such remaining portions are not determined by the court to be inoperable, and to this end acts are declared to be severable.
“This Court has long recognized that ‘[i]t is the law of this State that if invalid or unconstitutional language can be deleted from an ordinance and still leave it complete and operative then such remainder of the ordinance be permitted to stand.’ ” In re Request for Advisory Opinion Regarding Constitutionality of 2011 PA 38, 490 Mich 295, 345; 806 NW2d 683 (2011), quoting Eastwood Park Amusement Co v East Detroit Mayor, 325 Mich 60, 72; 38 NW2d 77 (1949).
We are convinced that severing the unlawful delegation from the remainder of the EPGA would be “inconsistent with the manifest intent of the legislature.” See
IV. RESPONSE TO THE CHIEF JUSTICE
First, in her concurring and dissenting opinion, our Chief Justice is correct (or, at least, I hope she is) that “[e]very eighth-grade civics student learns about the separation of powers and checks and balances—design features of our government to prevent one branch from accumulating too much power.” At the same time (again, I hope), every student also learns in that same classroom that these “design features” both define the distinctive authorities of the three branches of our government and empower each of these branches to “check and balance” the authorities of the others. And specifically relevant to the instant case is the authority of the judicial branch, in which the judiciary must identify whether the Constitution has been breached and undo such breaches, in order that the rights of the people may be upheld or that facets of our constitutional structure, including its separated powers and checks and balances that preserve and protect these same rights, may be upheld. These students will also learn that these “design features” have operated throughout our nation’s history to maintain a stable, limited, and representative form of government. The nondelegation doctrine-- the constitutional doctrine at issue in this
Second, the Chief Justice suggests that we have “announced” a new principle as part of the nondelegation doctrine because, while caselaw from the United States Supreme Court and this Court “require some standards for the delegation of legislative authority,” such that “in theory, an inadequate standard would be insufficient,” “until today, the United States Supreme Court and this Court have struck down statutes under the nondelegation doctrine only when the statutes contained no standards to guide the decision-maker’s discretion.” However, it is not this majority that has “announced” any novel proposition; rather, it is the Chief Justice who has announced a new principle by stating that repeated judicial statements espousing the necessity of meaningful legislative standards in support of a delegation do not mean what they say. Instead, all that is required is a standard-- some standard, any standard, a standard however illusory or meaningless or ineffectual in achieving its obvious and fundamental purpose-- to transform a delegation of “legislative” power into a delegation of “executive” power. And as a result, the only delegation that will ever actually run afoul of the Constitution will be one in which there are “no standards to guide the decision-maker’s discretion.” By this understanding, the Legislature may dissipate and reconfigure its own constitutional authority through empty and standardless delegations, and this Court will have no recourse but to affirm these delegations and acquiesce in the transformation of our system of separated powers and checks and balances, facilitating the dilution of perhaps the greatest constitutional barrier to abuse of public power. We do not believe that such a proposition is supported by either federal
[Enforcing the separation of powers is] about respecting the people’s sovereign choice to vest the legislative power in Congress alone. And [it is] about safeguarding a structure designed to protect their liberties, minority rights, fair notice, and the rule of law. So when a case or controversy comes within the judicial competence, the Constitution does not permit judges to look the other way; we must call foul when the constitutional lines are crossed. [Gundy, 588 US at ___; 139 S Ct at 2135 (Gorsuch, J., dissenting).]
Third, the Chief Justice also believes that this majority has “announced” a new principle to the effect that the standards imposed upon the executive must become more rigorous as the scope of the powers conferred becomes greater. Again, we disagree. As already noted, the United States Supreme Court has stated that “the degree of agency discretion that is acceptable varies according to the scope of the power . . . conferred.” Whitman, 531 US at 475. It then explained that the standards imposed must be “substantial” when the scope of the powers conferred is great: “While Congress need not provide any direction to the [Environmental Protection Agency] regarding the manner in which it is to define ‘country elevators,’ which are to be exempt from new-stationary-source regulations governing grain elevators, see
Fourth, the Chief Justice disagrees with our conclusion that the EPGA includes only the words “reasonable” and “necessary” as defining the standards governing the Governor’s emergency orders. She states that “[t]he EPGA does not use ‘reasonable’ or ‘necessary’ in a vacuum; the Governor’s action must be ‘reasonable’ or ‘necessary’ to ‘protect life and property or to bring the emergency situation within the affected area under control.’ ” We respectfully disagree concerning the pertinent “standards” in the present analysis. Although we have already quoted from part of Justice Kagan’s explanation of a nondelegation analysis in her Gundy lead opinion, we do so again with more of the surrounding language:
[A] nondelegation inquiry always begins (and often almost ends) with statutory interpretation. The constitutional question is whether Congress has supplied an intelligible principle to guide the delegee’s use of discretion. So the answer requires construing the challenged statute to figure out what task it delegates and what instructions it provides. [Gundy, 588 US at ___; 139 S Ct at 2123 (opinion by Kagan, J.).]
Here, the “task” that the EPGA delegates to the Governor is to promulgate “orders, rules, and regulations” to “protect life and property” and to “bring the emergency situation within the affected area under control.”
Fifth, to the extent the Chief Justice suggests our decision is inconsistent with the cases of the United States Supreme Court sustaining various broad delegations, we respectfully disagree and find the following sampling of cases illustrative and useful:
In New York Central Securities Corp v United States, 287 US 12; 53 S Ct 45; 77 L Ed 138 (1932), the Interstate Commerce Commission (ICC) authorized a set of railroad-system leases pursuant to the Interstate Commerce Act, which provided that the ICC may authorize such leases when in the “public interest.” Id. at 19, 20 n 1. At issue before the United States Supreme Court was whether the “public interest” standard constituted an invalid delegation because it was “uncertain.” Id. at 24. The Court sustained the delegation, reasoning as follows:
Appellant insists that the delegation of authority to the Commission is invalid because the stated criterion is uncertain. That criterion is the “public interest.” It is a mistaken assumption that this is a mere general reference to public welfare without any standard to guide determinations. The purpose of the Act, the requirements it imposes, and the context of the provision in question show the contrary. . . . [T]he term “public interest” as thus used is not a concept without ascertainable criteria, but has direct relation to adequacy of transportation service, to its essential conditions of economy and efficiency, and to appropriate provision and best use of transportation facilities, questions to which the [ICC] has constantly addressed itself in the exercise of the authority conferred. [Id. at 24-25.]
Thus, the
In Fed Radio Comm v Nelson Bros Bond & Mortgage Co, 289 US 266; 53 S Ct 627; 77 L Ed 1166 (1933), the Court was confronted with a delegation challenge to the Radio Act of 1927, which provided that the Federal Radio Commission may allow radio frequency use by a particular entity “ ‘from time to time, as public convenience, interest, or necessity requires . . . .’ ” Id. at 279, quoting
In granting licenses the commission is required to act “as public convenience, interest or necessity requires.” This criterion is not to be interpreted as setting up a standard so indefinite as to confer an unlimited power. . . . The requirement is to be interpreted by its context, by the nature of radio transmission and reception, by the scope, character, and quality of services, and, where an equitable adjustment between states is in view, by the relative advantages in service which will be enjoyed by the public through the distribution of facilities. [Id. at 285.]
Thus, the standard in Fed Radio Comm was not simply “public convenience, interest, or necessity” but also “the nature of radio transmission and reception,” “the scope, character, and quality of services,” and in certain cases “the relative advantages in service which will be enjoyed by the public through the distribution of facilities.”
In Yakus v United States, 321 US 414; 64 S Ct 660; 88 L Ed 834 (1944), the United States Supreme Court considered a nondelegation challenge to § 2(a) of the Emergency Price Control Act, which authorized the “Price Administrator” to fix commodity prices at a level that “ ‘in his judgment will be generally fair and equitable and will effectuate the purposes of this Act’ . . . .” Id. at 420, quoting § 2(a). In rejecting the challenge, the Court explained:
The boundaries of the field of the Administrator’s permissible action are marked by the statute. It directs that the prices fixed shall effectuate the declared policy of the Act to stabilize commodity prices so as to prevent war-time inflation and its enumerated disruptive causes and effects. In addition the prices established must be fair and equitable, and in fixing them the Administrator is directed to give due consideration, so far as practicable, to prevailing prices during the designated base period, with prescribed administrative adjustments to compensate for enumerated disturbing factors affecting prices. In short the purposes of the Act specified in § 1 denote the objective to be sought by the Administrator in fixing prices—the prevention of inflation and its enumerated consequences. The standards set out in § 2 define the boundaries within which prices having that purpose must be fixed. It is enough to satisfy the statutory requirements that the Administrator finds that the prices fixed will tend to achieve that objective and will conform to those standards . . . . [Yakus, 321 US at 423.]
Thus, the standard in Yakus was not simply “fair and equitable” but also “prevailing prices during the designated base period” and “administrative adjustments to compensate for enumerated disturbing factors affecting prices.”
We agree with the Solicitor General that the text of § 109(b)(1) of the CAA at a minimum requires that “[f]or a discrete set of pollutants and based on published air quality criteria that reflect the latest scientific knowledge, [the] EPA must establish uniform national standards at a level that is requisite to protect public health from the adverse effects of the pollutant in the ambient air.” Requisite, in turn, “mean[s] sufficient, but not more than necessary.” [Id. at 473 (citations omitted; brackets in original).]
The Court then rejected the challenge:
Section 109(b)(1) of the CAA, which to repeat we interpret as requiring the EPA to set air quality standards at the level that is “requisite” that is, not lower or higher than is necessary—to protect the public health with an adequate margin of safety, fits comfortably within the scope of discretion permitted by our precedent. [Id. at 475-476.]
Thus, the standard in Whitman was not simply “requisite to protect the public health” but also included consideration of “a discrete set of pollutants” and “published air quality criteria that reflect the latest scientific knowledge.” See
As these cases suggest, it reflects an incomplete understanding of United States Supreme Court nondelegation law to assert that vague terms such as “public interest” are ordinarily or typically sufficient to sustain a statute against a nondelegation challenge, even those statutes whose breadth and purview is far more narrow than that of the EPGA. Indeed, if the Chief Justice is correct that a statute only violates the nondelegation doctrine when “the statute[] contain[s] no standards to guide the decision-maker’s discretion,” why would the United States Supreme Court continually hear such appeals only to decide whether the standards in these cases are sufficient?
Sixth, in the end, if the standards in support of the EPGA’s delegation of power satisfy the Constitution, our response can only be: what standards would ever not satisfy the Constitution? As laid out earlier in this opinion, the EPGA confers an unprecedentedly broad power in Michigan that is restrained by only two words-- “reasonable” and “necessary”-- that do almost nothing to cabin either the authority or the discretion of the person in whom this power has been vested. Put simply, and our criticism is not of the Governor in this regard but of the statute in dispute-- almost certainly, no individual in the history of this state has ever been vested with as much concentrated and standardless power to regulate the lives of our people, free of the inconvenience of having to act in accord with other accountable branches of government and free of any need to subject her decisions to the ordinary interplay of our system of separated powers and checks and balances, with even the ending date of this exercise of power reposing exclusively in her own judgment and discretion. It is in
Finally, we observe in response to the Chief Justice that this decision should be understood as it has been explained throughout this opinion. It is not, we believe, a decision that does anything other than apply ordinary principles of administrative law, essentially balancing the required specificity of legislative standards that must accompany a grant of delegated powers with the breadth of those powers. What principally is extraordinary in this case is the scope of the statute under consideration, the EPGA, and the expansiveness of the authority it concentrates in a single public official. We do not believe that the conflation of circumstances giving definition to the delegated powers in this case-- the breadth of the delegation, the indefiniteness of the delegation, and the inadequacy of the standards limiting the delegation-- will soon come before this Court again. We have not sought here to redefine the constitutional relationship between the legislative and executive branches but only to maintain that relationship as it has existed for as long as our state has been a part of this Union. Although singular assertions of governmental authority may sometimes be required in response to a public emergency-- and the present pandemic is clearly such an emergency-- the sheer magnitude of the authority in dispute, as well as its concentration in a single individual, simply cannot be sustained within our constitutional system of separated powers.
V. CONCLUSION
We conclude that the Governor lacked the authority to declare a “state of emergency” or a “state of disaster” under the EMA after April 30, 2020, on the basis of the COVID-19 pandemic. Furthermore, we conclude that the EPGA is in violation of the Constitution of our state because it purports to delegate to the executive branch the legislative powers of state government-- including its plenary police powers-- and to allow the exercise of such powers indefinitely. As a consequence, the EPGA cannot continue to provide a basis for the Governor to exercise emergency powers.25
Stephen J. Markman
Brian K. Zahra
David F. Viviano (as to Parts III(A), (B), (C)(2), and IV)
Elizabeth T. Clement
MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, and JEFFERY GULICK, Plaintiffs, v. GOVERNOR OF MICHIGAN, MICHIGAN ATTORNEY GENERAL, and MICHIGAN DEPARTMENT OF HEALTH AND HUMAN SERVICES DIRECTOR, Defendants.
No. 161492 USDC-WD: 1:20-cv-414
STATE OF MICHIGAN SUPREME COURT
In re CERTIFIED QUESTIONS FROM THE UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION
VIVIANO, J. (concurring in part and dissenting in part).
According to the Centers for Disease Control and Prevention, the severe acute respiratory disease known as COVID-19 has been involved in the deaths of thousands of Michiganders and over 190,000 people nationwide.1 There is little doubt that COVID-19 is one of the most significant public-health challenges our state has
While the majority decides this case on constitutional grounds, I believe it is easily resolved by the correct interpretation of the statute at issue, the Emergency Powers of the Governor Act of 1945 (the EPGA),
I. THE EPGA: HISTORY, TEXT, AND CONTEXT
The EPGA’s history is a good place to begin because, in this case, it helps illuminate the statute’s meaning.2 In the summer of 1943, a little less than two years before the EPGA’s enactment, Detroit experienced a violent riot sparked by racial tensions. Thousands of soldiers entered the city, 34 individuals were killed, property damages amounted to $2 million, and countless injuries occurred. Capeci & Wilkerson, Layered Violence: The Detroit Rioters of 1943 (Jackson: University Press of Mississippi, 1991), pp 17-18. One of the most difficult problems officials faced was how to authorize the use of federal troops to control the rioting. See Shogan & Craig, The Detroit Race Riot: A Study in Violence (New York: Da Capo Press, 1976), pp 68-76. Although thousands of police officers had been deployed, officials believed that something more was needed. Id. at 70. In the midst of the crisis, Governor Harry Kelly was informed that martial law had to be declared in order to obtain federal assistance. Id. at 75-76. That would have required suspending all local and state laws in the city, depriving the city council and police departments of all authority, and suspending state-government operations in the area. Id.
Understandably, Governor Kelly was reluctant to take that step. Id. Instead, without relying on any apparent authority, he proclaimed a “ ‘state of emergency,’ ” authorizing the use of the “State Troops”—at
When the EPGA was introduced and enacted in 1945, it was well known that the legislation stemmed from the recent race riot and the perceived inability to order troops without declaring martial law; indeed, when it was first introduced in the Legislature, it was dubbed the “Anti-Riot Bill.”3 The text reflects this emphasis. The first section is the most important for our purposes. Its first sentence describes when and how the statute may be invoked:
During times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state, or reasonable apprehension of immediate danger of a public emergency of that kind, when public safety is imperiled, either upon application of the mayor of a city, sheriff of a county, or the commissioner of the Michigan state police or upon his or her own volition, the governor may proclaim a state of emergency and designate the area involved. [
MCL 10.31(1) (emphasis added).]
The provision for proclaiming “a state of emergency” very clearly reflects Governor Kelly’s declaration, which used the same term (albeit without any statutory authorization to do so).
The second two sentences pertain to the scope of the Governor’s authority to address an emergency situation once an emergency has been declared:
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. Those 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. [ Id. ]
The list of possible emergency orders comes, in large part, from the 1943 proclamation. Both speak of controlling “places of amusement” and “assembly,” and both contain provisions for curfews and prohibitions on the “sale . . . of alcoholic beverages.” And as originally passed, the EPGA also allowed the Governor “control of the possession, sale, carrying and use of firearms [and] other dangerous weapons,” 1945 PA 302(1), repealed by 2006 PA 546, just as the proclamation had prohibited the carrying of “arms or weapons of any description,” Kelly, Declaration and Proclamation (June 21, 1943), reprinted in The Detroit Race Riot, p 145. Thus, the very structure of the act and its key terms largely reflect the 1943 proclamation.
The second section also describes the powers the Governor wields once an emergency has been declared, but as the Governor’s counsel conceded at argument, this section does not address or expand the types of situations that qualify as emergencies:
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. [
MCL 10.32 (emphasis added).]
The final section makes it a misdemeanor to violate rules or orders prescribed pursuant to the statute.
The dispositive issue here is whether this statute applies in the sphere of public health generally or to an epidemic like COVID-19 in particular. The statute provides a list of events—for example, disaster, rioting, and catastrophe—justifying a declaration of emergency.
The Governor reads “public safety” expansively to encompass “public health.” She does not provide a source defining this exact term, however. By itself, the ordinary meaning of “safety” at the time the EPGA was enacted in 1945 might lend some support to the Governor’s reading. The dictionary she cites defined safety as the “[c]ondition of being safe; freedom from danger or hazard.” Webster’s New Collegiate Dictionary (1949). “Safety” could, therefore, cover health issues.4 But, as we shall see below, four justices from this Court read the same lay dictionary definition (from an earlier edition) as excluding health considerations. Chicago & N W R Co v Pub Utilities Comm, 233 Mich 676, 696; 208 NW 62 (1926) (opinion by SHARPE, J.). Moreover, we are looking for the meaning of “public safety.” None of the everyday dictionaries defines that term. Nor do the legal dictionaries from
The statutory context makes clear that the EPGA uses “public safety” as a term of art with a narrower meaning than the one the Governor posits. Recall that
Thus, when terms from the police-power context like “public safety” crop up in statutes, as they frequently do, courts treat them as terms of art. Cf. Lincoln Ctr v Farmway Co-Op, Inc, 298 Kan 540, 552; 316 P3d 707 (2013) (noting that the meaning of the terms “public health” and “public safety” is “widely understood in legal circles”); CLEAN v Washington, 130 Wash 2d 782, 804; 928 P2d 1054 (1996) (en banc) (noting that the “terms ‘public peace, health or safety’ ” are “synonymous with an exercise of the State’s ‘police power’ ”). In light of the lengthy history and pervasive use of the terms “police power” and “public safety,” the Legislature’s intent in employing them in the EPGA is unmistakable. By invoking “public safety” and placing it alongside “police power,” the Legislature incorporated the specialized legal meanings of these terms.
Another contextual clue supports this conclusion. If the term “public safety” is given the ordinary meaning offered by the Governor and embraced by the majority, it would render as surplusage the phrase “when public safety is imperiled.” Courts, however, strive to avoid interpretations that read statutes as containing terms that are surplusage or nugatory. People v Pinkney, 501 Mich 259, 282; 912 NW2d 535 (2018). As noted, the full phrase—“when public safety is imperiled”—modifies the entire preceding list of triggering events (i.e., “times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state”). The term “public” already precedes and modifies this list, so interpreting it under its ordinary meaning in the phrase “public safety” inevitably leads to surplusage. And by defining “safety” broadly as “ ‘the condition of being safe from undergoing or causing hurt, injury, or loss,’ ” the majority also fails to give it any real meaning. It is hard to imagine a “great . . . crisis, disaster, riot[], catastrophe, or similar public emergency” that does not risk “causing hurt, injury, or loss” to “people in general.”
Thus, ignoring context and reading “public safety” as a term of ordinary meaning renders it nugatory by giving it no meaning at all.
So our task is to decide whether “public safety,” as a term of art related to the “police power,” includes public-health issues like epidemics.
II. THE DISTINCTION BETWEEN PUBLIC SAFETY AND PUBLIC HEALTH
A. CASELAW
The distinction between “public safety” and “public health” is borne out in caselaw
Our adoption of Pollock‘s definition is particularly meaningful because Pollock was interpreting a similar constitutional provision and went on to define each of the terms in that provision. “Public peace,” according to Pollock, was “that quiet, order and freedom from disturbance guaranteed by law.” Pollock, 233 SW at 649. “By the ‘public health,’ ” the court explained, “is meant the wholesome sanitary condition of the community at large.” Id.
We had also acknowledged the distinctions earlier in Newberry v Starr, 247 Mich 404; 225 NW 885 (1929). Examining the same constitutional provision, we answered whether an act creating school districts could be given immediate effect because it bore “any real or substantial relation to preservation of public health, peace, or safety[.]” Id. at 411. We treated these as three separate categories, noting that “school districts have most important duties relating to preservation of health,” during such epidemics, “and less important duties respecting peace and safety,” including building safety and the safety of students in attendance. Id.
We again addressed the distinction in Chicago, 233 Mich at 699 (opinion by SHARPE, J.). There, a state law requiring cab curtains for the health of railroad employees was challenged as conflicting with federal railroad legislation that expressly stated its purpose was safety. Justice SHARPE, writing for four justices on a Court of eight, explained:
In my opinion, the words “health” and “safety,” as used in these acts, are not synonymous terms. “Health” is defined by Webster as “The state of being hale, sound, or whole, in body, mind, or soul; especially, the state of being free from physical disease or pain,” and “safety” as “freedom from danger or hazard; exemption
from hurt, injury, or loss.” While some of the safety provisions of the federal acts may tend to protect the health of the employees, such protection is but incidental to the main purpose, that of safeguarding the lives and limbs of the employees and protecting th[at] which is being transported, be it passengers or freight. [Id. at 696.]7
Thus, four justices rejected the conflation of safety and health, using an earlier version of the same dictionary the Governor cites here. The other four justices did not reject this argument but instead thought the federal legislation “covered ‘the entire locomotive and tender and all their parts’ . . . .” Id. at 689.8
And the distinction has persisted in more recent cases from our sister state courts as well. In Olivette v St Louis Co, 507 SW3d 637, 638, 645-646 (Mo App, 2017), the court rejected a county‘s effort to ground an ordinance establishing minimum police-force standards on a 1945 statute allowing it to promulgate rules to promote the ” ‘public health’ ” and prevent contagious diseases. Id. at 642 (citation omitted). In doing so, the court declined to adopt a broad definition of “public health,” noting that the legislature had created “different departments to address ‘public safety’ and ‘public health,’ ” indicating that “it considers these two different and distinct areas of government authority.” Id. at 645. In addition, the Legislature had enacted numerous statutes distinguishing the terms, “such as in the phrase ‘public health, safety and welfare[.]’ ” Id.; see also Winterfield v Palm Beach, 455 So 2d 359, 361 (Fla, 1984) (“At the very least, the public safety purpose of the police and fire projects is separate and distinct from the public health purpose of the sewer projects.“).
B. STATUTORY CONTEXT
The statutory structure in place when the Legislature enacted the EPGA also confirms the distinct meanings of “public safety” and “public health” and demonstrates that the Legislature did not mean to conflate the two concepts in the EPGA.
As far back as 1873, the Legislature had created the State Board of Health (the Board), which was given “general supervision of the interests of the health and life of the citizens of this State.”
The statutory structure in place in 1945 took shape in the wake of the influenza epidemic of 1918. In the midst of that epidemic, Governor Albert Sleeper banned by order various public meetings. State Closing is “Flu” Order, Lansing State Journal (October 19, 1918), p 1. The order did not cite any authority allowing the Governor to take such action, but the closures lasted only a few weeks. Id. (reprinting order); Governor Lifts “Flu” Ban, The Sebewaing Blade (November 7, 1918), p 1. Perhaps in response, just months after the ban, the Legislature overhauled the statutory framework for addressing statewide epidemics and public health more generally. In an act “to protect the public health,” the Legislature replaced the State Board of Health with a State Health Commissioner, who was given authority over the health laws as well as public meetings.
As things stood in 1945, the Commissioner had “general charge and supervision of the enforcement of the health laws” of the state.
In case of an epidemic of any infectious or dangerous communicable disease within this state or any community thereof, the state health commissioner may, if he deem it necessary to protect the public health, forbid the holding of public meetings of any nature whatsoever except church services which may be restricted as to number in attendance at 1 time, in said community, or may limit the right to hold such meetings in his discretion. Such action shall not be taken, however, without the consent and approval of the advisory council of health. . . . Such order shall be signed by the health commissioner and if applicable to the entire state be countersigned by the governor. [
1948 CL 325.9 ]
An entire chapter of the code contained detailed provisions applicable to communicable diseases. Upon finding that, among other things, a “dangerous communicable disease” existed inside or outside the state “whereby the public health is imperiled,” the State Health Commissioner was “authorized to establish a system of quarantine for the state of Michigan and the governor shall have authority to order the state militia to any section of the state on request of the state board of health to enforce such quarantine.”
Local health boards also played a large role in the response to epidemics. Most directly, local health boards had authority to quarantine those “infected with a dangerous communicable disease.”
Other provisions, both in the health code and elsewhere, constructed elaborate rules on how epidemics were to be handled, spanning from the appointment of state medical officials to specific instructions for railroads and summer resorts to criminal penalties for spreading communicable diseases.12
created the “Michigan state safety commission” for the express purpose of “promot[ing] . . . greater safety on the public highways and other places within the state . . . .” 1941 PA 188, title.
This was the state of the law in 1945 when the Legislature passed the EPGA. These statutes, like the caselaw, support the conclusion that “public health” and “public safety” represented distinct legal concepts. The statutory context does more than that, however. Reading the EPGA in light of this context also demonstrates how improbable it is that the Legislature meant to depart from the historical understanding of “public safety” by expanding the concept to include “public health” emergencies.
In general, we interpret statutes in the manner “most compatible with the surrounding body of law into which the provision
The Governor‘s broad reading of the EPGA does not comport with these longstanding interpretive principles. For her to be correct, we would have to assume that the Legislature in 1945 meant to lay waste to the extensive statutory provisions specifically addressing epidemics and communicable diseases. Under her reading, this body of statutory law would have been mere surplusage. An epidemic would constitute a “public safety” event justifying a state of emergency. At that point, the actual “public health” statutes would have been totally eclipsed by a statute that, on its face, does not even refer to public health or epidemics. The powerful but limited tools given to the Governor and the State Health Commissioner under the health code would have been superfluous—the Governor, applying the EPGA, could have fashioned any tools she thought fit and transgressed any limitations prescribed by the health code.
The same problem arises in the statutory context today. When the meaning of a term is questionable, as “public safety” might be thought of here, courts should “construe it to contain that permissible meaning which fits most logically and comfortably into the body of both previously and subsequently enacted law.” West Virginia Univ Hosps, Inc v Casey, 499 US 83, 100; 111 S Ct 1138; 113 L Ed 2d 68 (1991). This is “because it is our role to make sense rather than nonsense out of the corpus juris.” Id. at 101.
The Governor‘s interpretation makes nonsense out of the current body of statutes. Many laws similar to those above remain on the books.15 Most notably, the
entered July 29, 2020 (“reinforcing” EOs 2020-153, 2020-160, and 2020-161). In other words, nearly everything the Governor has done under the EPGA, she has also purported to do, via the DHHS Director, under
The contextual clues within the EPGA all lead to the same conclusion. To begin with, nowhere does the EPGA refer to terms or tools traditionally associated with public-health emergencies. This stands in stark contrast to the provisions from the 1945 health code discussed above. Those statutes referred to quarantines, removal of the sick, and medical treatment—the common responses to epidemics for centuries. See Zuckerman, Plague and Contagionism in Eighteenth-Century England: The Role of Richard Mead, 78 Bull Hist Med 273, 287-289 (2004); Link, Public Health History: Toward a New Synthesis, 19 Reviews Am Hist 528, 529 (1991) (book review).
Instead, what we find in the EPGA are terms suggesting safety concerns of the sort law-enforcement agencies have a duty to confront. Consider the nonexhaustive list of example orders the Governor can issue controlling matters such as traffic, places of amusement, alcoholic beverages, and explosives. These all appear to anticipate events like riots, in which the behavior of the public is what poses the safety risk. None of the examples relates to contagious diseases or epidemics. The references to designated “area[s]” and “specific zones” also suggest a focus on safety issues like civil disturbances. Although the statute does not expressly or impliedly limit the geographic scope of the emergency, it was evidently crafted with local emergencies in mind. That focus is also evident in the provision allowing city mayors and county sheriffs to seek emergency declarations. The accommodation for localities seems designed for civil disturbances and the like, not epidemics that could easily spread from place to place across the state. Read as part of the larger statutory context, then, the EPGA suggests a focus on public safety rather than public health.
C. PRACTICAL CONSTRUCTION OF THE EPGA
Another relevant interpretive consideration is how governors have used and construed the EPGA in the past. See Westbrook v Miller, 56 Mich 148, 151-152; 22 NW 256 (1885) (noting that “great deference is always” owed to an executive‘s practical construction of a statute it enforces); 2B Singer, Sutherland Statutory Construction (7th ed, October 2019 update), § 49:3 (noting that “long-continued contemporaneous and practical interpretation of a statute by executive officers . . . is an invaluable aid to construction” and “is closely related to the doctrine that statutes are given their common and ordinary meaning“).
In this regard, although “public health” was mentioned in past emergency declarations and orders under the EPGA, none ever involved public-health emergencies.16 Rather, prior to the adoption of the EMA in 1976, in the handful of times it was invoked, governors had employed the EPGA for events like riots, energy shortages, and violent strikes or protests. See, e.g., Executive Order No. 1967-3 (riots). Since the passage of the EMA in 1976, the EPGA has been mostly dormant. The only executive order expressly citing the EPGA in the past 50 years was in response to an oil spill—but the EMA was also invoked. Executive Order No. 2010-7. That is it.
This limited, practical use of the EPGA was perhaps a result of Governor Milliken‘s belief, expressed in his “Special Message to the Legislature on Natural Disasters,” that the statute was “pertinent to civil disturbances . . . .” 1973 House Journal 861 (No. 41, April 11, 1973). Whatever the reason for its limited use, the Governor‘s current application of the statute to cover public-health emergencies is unprecedented.17 Thus, an examination of the
III. CONSTITUTIONAL DOUBT
If, after all this, I had any lingering doubts about the meaning of the statute, then, as plaintiffs point out, I would still be forced to choose the narrower interpretation. That is because it avoids the grave constitutional questions raised by the Governor‘s exceedingly broad reading of the statute. ” ‘When the validity of an act . . . is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.’ ” Workman v Detroit Auto Inter-Ins Exch, 404 Mich 477, 508; 274 NW2d 373 (1979), quoting Ashwander v Tennessee Valley Auth, 297 US 288, 348; 56 S Ct 466; 80 L Ed 688 (1936). This principle, known as the constitutional-doubt canon, “rests on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts.” Clark v Martinez, 543 US 371, 381; 125 S Ct 716; 160 L Ed 2d 734 (2005).18
In the remaining few states, the respective governors have invoked statutes that at least arguably define emergencies or disasters with enough breadth to cover public health. See
Here, plaintiffs claim that the statute, under the Governor‘s interpretation, would violate the separation of powers by improperly delegating legislative authority and by failing to articulate standards to guide the Governor‘s exercise of the statutory power. Our Constitution divides the powers of government among the three branches and states that “[n]o person exercising
As I explain below, I believe that if the Governor‘s and the majority‘s interpretation is correct, then the EPGA is in trouble. The spin the Governor and the majority give the statute allows her to wield staggering powers across the entire terrain of our lives and our laws. And once declared, an emergency ends only when she says it ends. Until then, the Governor has vast powers. Using these powers here, she has unilaterally suspended statutes and determined which businesses can open, what they can sell, and how they can sell it; which homes residents can use; whether and how people socialize; what outdoor recreation is acceptable; what medical services individuals can obtain; and much more besides.13 All of this raises serious doubts about the statute‘s constitutionality. Indeed, below I explain that, assuming the Governor and the majority are correct on what the statute means, I agree with the majority that the EPGA constitutes an unconstitutional delegation of legislative power. But I would avoid these determinations by adopting the more reasonable (and, in my opinion, clearly correct) interpretation above.
IV. RESPONSE TO THE MAJORITY
By focusing on ordinary meaning, the majority opinion fails to seriously consider the fundamental principle that “[w]ords are to be understood in their ordinary, everyday meanings—unless the context indicates that they bear a technical sense.” See Reading Law, p 69 (emphasis added). It is true that “[i]nterpreters should not be required to divine arcane nuances or to discover hidden meanings” and that “we should not make [interpretation] gratuitously roundabout and complex.” Id. at 69-70. And it is also true, as I have pointed out elsewhere, that ” ‘[o]ne should assume the contextually appropriate ordinary meaning unless there is reason to think otherwise.’ ” In re Erwin Estate, 503 Mich 1, 33 n 15; 921 NW2d 308 (2018) (VIVIANO, J., dissenting), quoting Reading Law, p 70. But, as Scalia and Garner are quick to point out, “[s]ometimes there is reason to think otherwise, which ordinarily comes from context.” Reading Law, p 70.
As the authors explain, in somewhat elementary fashion, “[e]very field of serious endeavor develops its own nomenclature—sometimes referred to as terms of art,” and “[s]ometimes context indicates that [this] technical meaning applies.” Id. at 73. This is not a new principle. See, e.g., 1 Kent, Commentaries on American Law (1826), p 432 (“The words of a statute are to be taken in their natural and ordinary signification and import; and if technical words are used, they are to be taken in a technical sense.“). It is deeply embedded in our law. See
The majority ignores the obvious contextual clues that inexorably lead to the conclusion that “public safety” is a term of art—i.e., it is an object of the police power and is referenced in a statute that explicitly
But that is not all. As described above, by reading “public safety” according to the ordinary meanings of its two words, the majority opinion ignores the statutory context and renders the entire phrase “when public safety is imperiled” nugatory. This disregards yet another widely accepted and routinely applied canon of interpretation: the surplusage canon.20
Perhaps most troubling—in a case in which the majority endeavors to protect the separation of powers—is the majority‘s disregard of yet another fundamental and longstanding interpretive rule: the constitutional-doubt canon. Although I believe my reading of the EPGA is the most reasonable interpretation of the statute, even if I were inclined to accept the Governor‘s interpretation, courts have an obligation to go further to see if “a construction of the statute is fairly possible by which the question may be avoided.” Workman, 404 Mich at 508 (quotation marks and citation omitted). The majority opinion not only overlooks basic interpretive principles in the first instance, but it also fails to take a second look to see if there is another reasonable construction of the statute. This failure to grapple with the constitutional-doubt canon deprives the majority of an indispensable interpretive tool that functions both to uncover the meaning of statutory text and also to respect separation-of-powers principles by “minimiz[ing] the occasions on which [the courts] confront and perhaps contradict the legislative branch.” Reading Law, p 249.
I would not suspend the sound principles of interpretation that have guided our interpretive efforts for centuries for this or any case. Instead, I would give the EPGA its fair meaning, as outlined above.
V. DELEGATION
It should be abundantly clear by now that I do not believe we need to reach the constitutional question in this case because the statute simply does not apply. But six justices disagree, and so my interpretation is not binding. Instead, the interpretation that now governs reads the EPGA to cover nearly everything under the sun, thus bringing the delegation issue into focus. This is, moreover, a certified-question case in which we are presented two discrete issues, one of which involves delegation. Therefore, I consider it my duty to answer whether the EPGA, as construed by the majority, constitutes an impermissible delegation of legislative powers.21
As Justice Gorsuch stated, the core principle underlying the nondelegation doctrine—and one that is enshrined in our own Constitution,
The strict requirements for legislation would mean nothing, Justice Gorsuch observed, if the legislative branch “could pass off its legislative power to the executive branch . . . .” Gundy, 588 US at ___; 139 S Ct at 2134 (Gorsuch, J., dissenting). More important still, these hedges against hasty lawmaking and the separation of powers were not an experiment designed to preserve “institutional prerogatives or governmental turf“; they were, instead, meant to “respect[] the people‘s sovereign choice to vest the legislative power” in one branch alone and to “safeguard[] a structure designed to protect their liberties, minority rights, fair notice, and the rule of law.” Id. at 2135. So when a court throws up its hands and says an airy standard like “reasonableness” is enough to make a delegation proper, the court is not simply letting the Legislature recalibrate its institutional interests—it is allowing the Legislature to pass off responsibility for legislating, thereby endangering the liberties of the people, as the present case has vividly demonstrated.22
“Second,” Justice Gorsuch continued, “once Congress prescribes the rule governing private conduct, it may make the application of that rule depend on executive fact-finding.” Gundy, 588 US at ___; 139 S Ct at 2136 (Gorsuch, J., dissenting). For example, a statute might impose trade restrictions on another country if the President determines that that country has taken or not taken certain actions. Id. Once again, our caselaw contains this same standard. See Argo Oil Corp, 274 Mich at 52; see also Tribbett v Marcellus, 294 Mich 607, 615; 293 NW 872 (1940) (“While the legislature cannot delegate its power to make a law, nevertheless it can enact a law to delegate a power to determine a fact or a state of things upon which the application of the law depends.“).
In fact, we have noted that “for many years this and other courts evaluated delegation challenges in terms of whether a legislative (policymaking) or administrative (factfinding) function was the subject of the delegation . . . .” Blue Cross & Blue Shield of Mich, 422 Mich at 51. But we jettisoned this more restrained and historically grounded test in favor of the regnant “standards” test, i.e., the “intelligible principle” test. Id. Why? Not because this new test better reflected the Constitution‘s original meaning or historical practice. Rather, we adopted the new position because we deemed the “standards” test to reflect the “essential purpose of the delegation doctrine” and because we better liked the consequences of this new test, i.e., that the Legislature could gather “the resources and expertise of agencies and individuals to assist the formulation and execution of legislative policy.” Id. These are not considerations that normally justify a constitutional interpretation. See Citizens Protecting Michigan‘s Constitution v Secretary of State, 503 Mich 42, 59; 921 NW2d 247 (2018) (the object of constitutional interpretation is uncovering the text‘s original public meaning); Tyler v People, 8 Mich 320, 333 (1860) (“The expediency or policy of the statute has nothing to do with its constitutionality[.]“). As Justice Gorsuch described, the same mutation occurred in federal law, whereby a stray statement about intelligible principles “began to take on a life of its own” and eventually overwhelmed the traditional tests. Gundy, 588 US at ___; 139 S Ct at 2138-2140 (Gorsuch, J., dissenting).
Finally, the third realm of permissible delegation is the assignment of nonlegislative tasks to the executive (or judicial) branches. Id. at 2137. Almost by definition, if the delegated authority is not legislative, but already falls within the scope of executive authority, then no improper delegation has occurred. Our earlier caselaw similarly reflects this view. See, e.g., People v Collins, 3 Mich 343, 415-416 (1854) (“That the legislature may confer upon others, in their discretion, administrative powers necessary or proper for carrying on the government, not otherwise vested by the constitution, and in some cases involving the exercise of a discretion which the legislature itself might, but could not conveniently have exercised, no one will question. These, however, are not the law-making powers, and therefore do not here require particular notice. . . . But the power of enacting general laws cannot be delegated—not even to the people. There is nothing in the constitution which authorizes or contemplates it; nothing in the nature of the power which requires it; nothing in the usages of our American government which sanctions it; no single adjudication of a court of last resort, in any state, which affirms it; and such delegation would be contrary to the intent manifested by the very structure of the legislative department of the government.“).
Our holding today could be explained through this traditional framework. The power the Governor holds under the EPGA is no mere “filling in the details.” Nor could the EPGA be thought of as a fact-finding statute or a grant of nonlegislative power. Instead, the EPGA bestows upon the Governor pure lawmaking authority, precisely what the separation of powers is designed to prevent.
No one in this case has requested that we consider the analytical framework sketched by Justice Gorsuch. It is, however, a possible path toward a nondelegation doctrine that reflects the original public meaning of our Constitution—every version of which contains more explicit language bearing upon nondelegation than does our federal counterpart.23 Thus, if the issue is properly presented in a future case, I would consider whether, and to what extent, we should adopt this framework.24 But in the present matter, I fully
V. CONCLUSION
As discussed above, I believe that this case can be resolved on statutory grounds. In particular, I do not believe that the EPGA applies to public-health events like pandemics. Because my colleagues disagree and proceed to decide the constitutional issue, I consider it my duty to reach that issue as well. I agree with and join the majority‘s analysis and holding that the EPGA represents an unconstitutional delegation of legislative authority. To my mind, the case also raises a larger point that the Court would do well to examine in an appropriate case: does the current “standards” test in the nondelegation doctrine reflect our Constitution‘s original public meaning? For now, however, I fully agree with the majority‘s articulation and application of the current standard here. I also agree with the majority‘s holding as to the EMA. For these reasons, I join Parts III(A), (B), (C)(2), and IV of the majority opinion and concur in part and dissent in part.
David F. Viviano
STATE OF MICHIGAN SUPREME COURT
In re CERTIFIED QUESTIONS FROM THE UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION
MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, and JEFFERY GULICK, Plaintiffs, v. GOVERNOR OF MICHIGAN, MICHIGAN ATTORNEY GENERAL, and MICHIGAN DEPARTMENT OF HEALTH AND HUMAN SERVICES DIRECTOR, Defendants.
No. 161492
USDC-WD: 1:20-cv-414
McCORMACK, C.J. (concurring in part and dissenting in part).
Every eighth-grade civics student learns about the separation of powers and checks and balances—design features of our government to prevent one branch from accumulating too much power. The principle of separation of powers is fundamental to democracy. As James Madison put it: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many . . . may justly be pronounced the very definition of tyranny.” The Federalist No. 47 (Madison) (Rossiter ed, 1961), p 301.
In this light, the Legislature‘s delegation of authority to the Governor in the Emergency Powers of the Governor Act (the EPGA),
That does not insulate the Governor‘s exercise of that authority from checks and balances. To the contrary, there are many ways to test the Governor‘s response to this life-and-death pandemic.
Some of these are judicial. For example, the statute allows a legal challenge to the Governor‘s declaration that COVID-19, as a threshold matter, constitutes a “great public crisis” that “imperil[s]” “public safety.”
There are legislative mechanisms available too. The Legislature might revisit its
What is more, Michigan‘s citizens can initiate petition drives to repeal the EPGA (and they are) and to recall the Governor (and they are), exercising yet other constitutional safeguards to curb executive overreach. Citizens by petition could alternatively amend the statute. And with or without a citizens’ petition, the Governor undoubtedly will be politically accountable to voters for her actions in our next gubernatorial election, the ultimate check.
Not content with available constitutional devices and unwilling to acknowledge the limitations expressed by the EGPA‘s terms, the majority forges its own path. It announces a new constitutional rule to strike down a 75-year-old statute passed to address emergencies. In so doing, the majority needlessly inserts the Court into what has become an emotionally charged political dispute. Because our precedent does not support the majority‘s decision, because I would not make new rules to address a once-in-a-century global pandemic, and because there are many other remedies available to curb executive overreach, I respectfully dissent in part.1
I. THE NONDELEGATION DOCTRINE
As the majority observes, “[s]tatutes are presumed to be constitutional, and courts have a duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent.” Taylor v Gate Pharm, 468 Mich 1, 6; 658 NW2d 127 (2003). In Dep‘t of Natural Resources v Seaman, 396 Mich 299, 309; 240 NW2d 206 (1976), this Court adopted a three-pronged standard for evaluating whether a statute has provided sufficient standards for the delegation of legislative power to be constitutional. First, the act in question must be read as a whole. Second, the standard must be as reasonably precise as the subject matter requires or permits. And third, if possible, the statute must be construed in a way that renders it valid, not invalid; as conferring administrative, not legislative, power; and as vesting discretionary, not arbitrary, authority. The second prong is at the center of this dispute.
In applying this standard, we have consistently upheld statutes with broad and indefinite delegations of legislative authority. See, e.g., G F Redmond & Co v Mich Securities Comm, 222 Mich 1, 7; 192 NW 688 (1923) (concluding that the statutory term “good cause” for revocation of a license was “sufficiently definite” to constitute an adequate standard); Smith v Behrendt, 278 Mich 91, 93-94, 96; 270 NW 227 (1936) (upholding a statute that delegated the authority to grant permits to operate otherwise prohibited oversize vehicles on public highways “in special cases“); State Highway Comm v Vanderkloot, 392 Mich 159, 172; 220 NW2d 416 (1974) (holding that ” ‘necessity’ is an adequate standard in the context of delegated eminent domain authority” and noting that ” ‘[n]ecessity’ is also a recognized standard guiding administrative bodies in making
The United States Supreme Court takes a similar approach: a delegation of legislative authority is valid if it provides an ” ‘intelligible principle’ ” to guide the decision-maker‘s authority. Mistretta v United States, 488 US 361, 372; 109 S Ct 647; 102 L Ed 2d 714 (1989), quoting J W Hampton, Jr & Co v United States, 276 US 394, 409; 48 S Ct 348; 72 L Ed 624 (1928). Under this standard, the United States Supreme Court has approved of “broad standards” for congressional delegation of legislative power. Mistretta, 488 US at 373. There is a reason for this: “Congress simply cannot do its job absent an ability to delegate power under broad general directives.” Id. at 372. Using such delegations, “Congress gives its delegee the flexibility to deal with real-world constraints in carrying out his charge.” Gundy v United States, 588 US ___, ___; 139 S Ct 2116, 2130; 204 L Ed 2d 522 (2019) (opinion by Kagan, J.).
The United States Supreme Court has only invalidated a statute under the nondelegation doctrine in two cases, both from 1935. Panama Refining Co v Ryan, 293 US 388; 55 S Ct 241; 79 L Ed 446 (1935); ALA Schechter Poultry Corp v United States, 295 US 495; 55 S Ct 837; 79 L Ed 1570 (1935). By contrast, the Court has “over and over upheld even very broad delegations” of authority in numerous cases spanning various decades. Gundy, 588 US at ___; 139 S Ct at 2129 (opinion by Kagan, J.). For a far-from-exhaustive list, see Gundy, 588 US at ___; 139 S Ct at 2129 (opinion by Kagan, J.); id. at 2131 (Alito, J., concurring in the judgment); Whitman v American Trucking Associations, Inc, 531 US 457, 472; 121 S Ct 903; 149 L Ed 2d 1 (2001); Mistretta, 488 US at 379; United States v Mazurie, 419 US 544, 556-557; 95 S Ct 710; 42 L Ed 2d 706 (1975); United States v Sharpnack, 355 US 286, 296-297; 78 S Ct 291; 2 L Ed 2d 282 (1958); 103” court=“U.S.” date=“1946“>American Power & Light Co v Securities & Exch Comm, 329 US 90, 104-106; 67 S Ct 133; 91 L Ed 103 (1946); Yakus v United States, 321 US 414, 425-426; 64 S Ct 660; 88 L Ed 834 (1944); Mulford v Smith, 307 US 38, 47-49; 59 S Ct 648; 83 L Ed 1092 (1939); J W Hampton, Jr & Co, 276 US at 409-411; United States v Grimaud, 220 US 506, 516-517, 521; 31 S Ct 480; 55 L Ed 563 (1911); Marshall Field & Co v Clark, 143 US 649, 693-694; 12 S Ct 495; 36 L Ed 294 (1892); Wayman v Southard, 23 US (10 Wheat) 1; 6 L Ed 253 (1825). Thus, the current state of the law is such that a successful nondelegation challenge in that Court is very hard to come by.2
The delegation in the EPGA plainly has standards that surmount that bar. For the Governor to invoke the EPGA, her actions must be “reasonable” and “necessary,” they must “protect life and property” or “bring the emergency situation . . . under control,” and they may be taken only at a time of “public emergency” or “reasonable apprehension of immediate danger” when “public safety is imperiled.”
It is not my view that only delegations with no standards are unconstitutional. But until today this Court and the United States Supreme Court upheld every delegation that had some standards to guide the decision-maker‘s discretion. The particular standards in the EPGA are as reasonably precise as the statute‘s subject matter permits. Given the unpredictability and range of emergencies the Legislature identified in the statute, it is difficult to see how it could have been more specific. Indeed the EPGA contains multiple limitations on the Governor‘s authority, each limitation requiring more of the Governor when exercising authority.3 Therefore, our
The majority believes that Whitman provides the foundation for its decision that a delegation as broad as this one requires more specific standards guiding the Governor‘s discretion. But Whitman cannot bear the weight that they place on it. Whitman does state (sensibly) that the degree of discretion that is acceptable varies according to the scope of the power conferred. But it then sets broad parameters that can‘t be cast aside here:
[E]ven in sweeping regulatory schemes we have never demanded, as the Court of Appeals did here, that statutes provide a “determinate criterion” for saying “how much [of the regulated harm] is too much.” In Touby [v United States, 500 US 160; 111 S Ct 1752; 114 L Ed 2d 219 (1991)], for example, we did not require the statute to decree how “imminent” was too imminent, or how “necessary” was necessary enough, or even—most relevant here—how “hazardous” was too hazardous. [Whitman, 531 US at 475 (citation omitted).]
And the Whitman Court upheld the delegation in that case. Thus, even in a “sweeping” law (like the EPGA), the United States Supreme Court‘s rules have said—and ours were in accordance until today—that the standards provided are enough to guide the Governor‘s exercise of her discretion.4
The majority reaches a contrary conclusion only by breaking new ground in our nondelegation jurisprudence. And what is its justification for doing so? Essentially this—the scope of the Governor‘s power under the EPGA is unprecedented, so we need a new nondelegation rule to contain it. But creating new constitutional doctrine to respond to a problem that has many other solutions puts the Court in a precarious position. If, as Aristotle said, “the law is reason free from passion,” an emotionally charged case seems like a terrible candidate for making new law. When there is a settled rule that has been in place for decades, discarding it to respond to an outlier case (especially when there are other solutions available) is imprudent.
Political remedies abound too. The people could convince their elected representatives to repeal (or amend) the EPGA, or attempt to do so themselves. Indeed, a petition to repeal the EPGA is circulating, and recent news reports suggest that it may already have enough signatures to proceed. See, e.g., Hermes & Booth, Michigan Group Surpasses Signatures Needed for Petition Against Gov. Whitmer‘s Emergency Powers (September 14, 2020), available at <https://www.clickondetroit.com/news/michigan/2020/09/14/group-gathers-signatures-to-petition-against-gov-whitmers-emergency-powers/> (accessed October 1, 2020) [https://perma.cc/98ZL-REE8]. Not to mention the most potent political remedy of all: the ballot box. If citizens are unhappy with the Governor‘s actions, they can launch a petition to recall her (and again, at least one is already circulating)—or vote against her in the next election.
Our nondelegation jurisprudence does not support the majority‘s decision to facially invalidate the EPGA. And the availability of other remedies makes this case a poor vehicle for reshaping the law. I dissent from the majority‘s sweeping constitutional ruling.7
II. CONCLUSION
I agree with the majority that the Governor‘s executive orders issued after April 30, 2020, were not valid under the EMA. But I dissent from its holding that the EPGA is facially unconstitutional under the nondelegation doctrine. I would uphold the EPGA as a valid delegation of legislative authority under our settled jurisprudence.
Bridget M. McCormack
Richard H. Bernstein
Megan K. Cavanagh
STATE OF MICHIGAN SUPREME COURT
In re CERTIFIED QUESTIONS FROM THE UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION
MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, and JEFFERY GULICK, Plaintiffs, v. GOVERNOR OF MICHIGAN, MICHIGAN ATTORNEY GENERAL, and MICHIGAN DEPARTMENT OF HEALTH AND HUMAN SERVICES DIRECTOR, Defendants.
No. 161492
USDC-WD: 1:20-cv-414
BERNSTEIN, J. (concurring in part and dissenting in part).
Like Chief Justice McCORMACK, whose separate opinion I join in full, I concur in the majority‘s opinion in part but dissent from its ultimate holding that the Emergency Powers of the Governor Act (EPGA),
The Centers for Disease Control and Prevention report that, in the United States, there have been more than 7,000,000 confirmed cases of COVID-19, and more than 200,000 associated deaths.1 This data confirms that the United States is the worldwide leader in both confirmed cases and deaths.2 In Michigan alone, there have been more than 100,000 confirmed cases of COVID-19, and more than 6,000 associated deaths.3 Although many of the measures enacted by executive order have led to the containment of these numbers in Michigan, history warns us that deadlier second or third waves may still await us.4
The separation of powers is one of the fundamental principles of our form of government.5 As one of the Framers put it:
If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. [The Federalist No. 51 (Madison) (Rossiter ed, 1961), p 322.]
Our entire government is built on the understanding that a system of checks and balances between the branches is necessary for a fully functioning democracy. Our interest in policing the boundaries between the separate branches of government is more than merely academic. I am reminded of a passage in the Bible, which reads, “Now there arose a new king over Egypt, who did not know Joseph.” Exodus 1:8. It is this concern over a new king that propels my unease here. It is not enough to be content with how a specific individual may be wielding their power. Instead, we are concerned with the inherent authority to act, because in our system of government, leaders may come and go depending on the will of the electorate. That a specific leader can be credited with acting in good faith does not prevent a successor from behaving differently. It can only help sharpen our understanding of how best to protect our democracy to think about how an unknown future actor might exercise this authority and what concerns that might raise.6
To the extent that this commentary is understood to be limited to a federal context, this Court has also noted that application of the intelligible-principle requirement has led to “uniformly unsuccessful” delegation challenges since the New Deal era. Taylor v Gate Pharm, 468 Mich 1, 9; 658 NW2d 127 (2003). “In Michigan, this Court has considered similar claims regarding statutes where the claims included an allegation of improperly delegating the Legislature‘s power to a Michigan agency, and we have rejected the claims on a basis similar to the federally developed rationale.” Id. at 10.
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. [Id. at 2131.]
To conclude, as I do, that Governor Whitmer has the legal authority to issue orders under the EPGA would not prevent the people of Michigan from otherwise expressing their frustrations with the COVID-19 orders. Efforts to repeal the EPGA are already underway. As with all elected officials, the Governor herself is politically accountable to the electorate, via the recall process or at the next gubernatorial election.10 The enforcement of individual executive orders could and has already been challenged, as evidenced in the underlying case before us, as not being “reasonable” or “necessary to protect life and property.”
[A]thletes training for, practicing for, or competing in an organized sport must wear a facial covering (except when swimming) or consistently maintain 6 feet of social distance (except for occasional and fleeting moments). For example, an athlete participating in a football, soccer, or volleyball game would not be able to consistently maintain 6 feet of distance, and therefore would need to wear a facial covering.
One could mount a challenge to the enforcement of this order in a region with a lower incidence of COVID-19, as a mask mandate might not be necessary to protect life and property under those circumstances. The very duration and scope of the executive orders could also be challenged under the same language, as some of the more invasive restrictions may no longer be reasonable or necessary if a vaccine were to be widely distributed or if a spike of infections were to be successfully flattened. All of these options would remain available to the people of Michigan even if this Court concluded that the Governor had the authority to issue orders under the EPGA.
In conclusion, on the basis of settled caselaw from this Court and the Supreme Court of the United States, I would hold that the EPGA does not offend the nondelegation doctrine, and I would leave to the people of Michigan the right to mount
Richard H. Bernstein
Notes
The majority concludes otherwise by asserting that the EPGA contains only the limitations that the Governor‘s actions be “reasonable” and “necessary,” but as the majority notes, the United States Supreme Court has observed that the word “necessary” may be part of a sufficient standard imposed upon the executive branch. Touby v United States, 500 US 160; 111 S Ct 1752; 114 L Ed 2d 219 (1991).
So too here. The EPGA does not use “reasonable” or “necessary” in a vacuum; the Governor‘s action must be “reasonable” or “necessary” to “protect life and property or to bring the emergency situation within the affected area under control.” What more important objectives does a Governor have in an emergency than to protect life and property and bring the emergency situation under control? And given the variety, breadth, and scope of potential emergencies, how much more specific could the Legislature have been in setting the standards guiding the Governor‘s discretion to accomplish those goals? Far from “illusory,” as the majority calls them, these standards are specifically targeted to allow the Governor to remedy the dire consequences flowing from the emergency. For that reason, the United States Supreme Court precedent discussed in the majority opinion that holds that a “necessity” or some comparable standard might not have been sufficient in and of itself, but was enough when coupled with some criterion, applies to the EPGA. In other words, the authority that the majority cites says the statute is constitutional. The majority‘s discussion of those cases also contradicts its claim that the standards in the EPGA are confined to “reasonable” or “necessary.” For example, the majority admits that the standard in New York Central Securities Corp v United States, 287 US 12; 53 S Ct 45; 77 L Ed 138 (1932), was not simply confined to the “public interest” but also included “adequacy of transportation service,” “essential conditions of economy and efficiency,” and “appropriate provision and best use of transportation facilities” because those terms supplied some criterion. But the majority fails to recognize that the EPGA similarly contains some criterion when it states that the Governor‘s orders must be necessary to “protect life and property or to bring the emergency situation within the affected area under control.”
- A declaratory judgment that the Provider Plaintiffs are permitted under Executive Order 2020-17, Executive Order 2020-77, and the HHS order to continue their business operations and Mr. Gulick is permitted under Executive Order 2020-17, Executive Order 2020-77, and the HHS order to obtain knee replacement surgery and other vital medical treatment;
- Alternatively, a declaration that Executive Order 2020-17 and Executive Order 2020-77, as applied to the Plaintiffs, violates the Michigan Constitution, the Fourteenth Amendment, and the Commerce Clause of the United States Constitution;
- Preliminary and permanent injunctive relief preventing the Defendants from enforcing Executive Order 2020-17, Executive Order 2020-77, and the HHS order against the Plaintiffs;
- Damages for the violation of the Plaintiffs’ constitutional rights, in an amount to be proven at trial;
- Costs and expenses of this action, including reasonable attorneys’ fees, in accordance with
42 U.S.C. § 1988 ; and - Any further relief that the Court deems appropriate.
When Justice BERNSTEIN questioned counsel for the Governor during oral argument concerning the ending point of the Governor‘s exercise of emergency powers under the EPGA, counsel replied:
See Governor Gretchen Whitmer, MI Safe Start: A Plan to Re-Engage Michigan‘s Economy (May 7, 2020), available atRegarding this pandemic in terms of timing, while I have no crystal ball, the reasonable prognostication is that we‘re talking about a matter of months. So we‘re looking at certain benchmarks: sufficient immunity, vaccination, therapeutic interventions, and a combination of those things. [Michigan Supreme Court, Oral Arguments in In re Certified Questions <https://www.youtube.com/watch?v=HyBanqtCLvo> at 1:44:20 to 1:44:38 (accessed September 29, 2020).]
In Touby v United States, 500 US 160; 111 S Ct 1752; 114 L Ed 2d 219 (1991), the United States Supreme Court upheld as constitutional
Although it features fewer procedural requirements than the permanent scheduling statute, § 201(h) meaningfully constrains the Attorney General‘s discretion to define criminal conduct. To schedule a drug temporarily, the Attorney General must find that doing so is “necessary to avoid an imminent hazard to the public safety.” § 201(h)(1),
21 U.S.C. § 811(h)(1) . In making this determination, he is “required to consider” three factors: the drug‘s “history and current pattern of abuse“; “[t]he scope, duration, and significance of abuse“; and “[w]hat, if any, risk there is to the public health.” §§ 201(c)(4)-(6), 201(h)(3),21 U.S.C. §§ 811(c)(4)-(6) ,811(h)(3) . Included within these factors are three other factors on which the statute places a special emphasis: “actual abuse, diversion from legitimate channels, and clandestine importation, manufacture, or distribution.” § 201(h)(3),21 U.S.C. § 811(h)(3) . The Attorney General also must publish 30-day notice of the proposed scheduling in the Federal Register, transmit notice to the Secretary of HHS, and “take into consideration any comments submitted by the Secretary in response.” §§ 201(h)(1), 201(h)(4),21 U.S.C. §§ 811(h)(1) ,811(h)(4) . [Id. at 166 (brackets in original).]
As Touby illustrates, the word “necessary” may be a part of a sufficient standard imposed upon the executive branch, but we do not believe that it is by itself a sufficient standard, at least not in the context of the remarkably broad powers conferred by the EPGA.
The majority opinion also finds it significant that I was the first to raise the question of whether “public safety” should be interpreted as a legal term of art when I did so at oral argument and notes that plaintiffs “effectively conceded” this argument. However, the Court requested supplemental briefing on the issue, and all parties and amici have had an opportunity to be heard on this issue. In any event, the Court is certainly not bound by the concession. Compare Bisio v The City of the Village of Clarkston, ___ Mich ___, ___; ___ NW2d ___ (2020) (Docket No. 158240) (adopting an interpretation of a statute favoring a party contrary to that party‘s concession when the issue was raised at the eleventh hour by amicus, the issue was not addressed at oral argument, and the parties were not given an opportunity for supplemental briefing).In outlining the problems that would arise in such a scenario, Justice Gorsuch described a situation eerily similar to the present case:
Without the involvement of representatives from across the country or the demands of bicameralism and presentment, legislation would risk becoming nothing more than the will of the current President. And if laws could be simply declared by a single person, they would not be few in number, the product of widespread social consensus, likely to protect minority interests, or apt to provide stability and fair notice. [Gundy, 588 US at ___; 139 S Ct at 2135 (Gorsuch, J., dissenting).]