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In The News

Friday, May 15, 2020

A Look at Historic and Important Arguments Between the Legislature and Governor

By Michael Nichols
Categories: Michael J. Nichols

The lawyers for the legislative leaders argue that the Executive Orders issued under the Governor’s Emergency Powers Act of 1945 are invalid because the Governor is exceeding her authority, that she is misinterpreting the law and, at least in part, due to the fact that the 1945 Act is designed to address local emergencies as opposed to statewide situations.
They are seeking what is known as a motion for a declaratory judgment under a Michigan Court rule that allows for a judge to “declare” that an act by government or a party in a case is invalid or illegal
“The Legislature is entitled to immediate declaratory relief. The Governor is acting pursuant to emergency powers that she does not have while eviscerating laws that she is charged to enforce. She has chosen to regulate every aspect of nearly 10 million lives with no consent or input from the people’s representatives, whose assistance the Governor publicly disdains. No statute or constitutional provision empowers the Governor to declare a statewide, indefinite state of emergency and then rely on that declaration to exercise unfettered lawmaking authority. Quite the opposite: the Michigan Constitution vests that power solely with the Legislature.

The Governor’s actions offend fundamental separation-of-powers principles. Those unconstitutional acts cannot stand.”

Probably the best way to lay out the arguments by the legislature is to shamleessly simply copy and paste the table of contents from the brief filed on their behalf:
I. The Governor did not have authority to issue COVID-19-related orders after April 30, 2020.
A. Because the Legislature has not extended the state of emergency under the Emergency Management Act, the Governor may not exercise authority under that law to address COVID-19.
1. The Governor’s orders are inconsistent with the EMA’s plain text.
2. The Governor’s contrary interpretation would produce absurd results.
3. The Governor’s interpretation of the EMA renders the Legislature’s role a nullity.
4. The Governor’s interpretation of the EMA defeats a central purpose of the statute: allocating power across both the legislative and executive branches to respond to crises.
B. The Governor cannot use the Emergency Powers of the Governor Act—a law designed for acute, local emergencies in an area within the state—to justify an indefinite, statewide state of emergency.
1. The plain language of the statute signals that it was intended for local matters within the state.
2. Reading the EMA together with the EPGA confirms that the EPGA is a locally focused statute.
3. The historical context shows that the EPGA was meant for local matters.
4. The Court should construe the EPGA to apply to only local problems to avoid potential constitutional concerns.
C. The Constitution’s general grant of executive authority does not empower the Governor
to issue law-making executive orders like these.
II.The Governor’s COVID-19 executive orders violate the separation of powers.
A. Michigan’s Constitution follows the venerable American tradition of separating lawmaking power from executive power.
B. Lawmaking power rests exclusively in the hands of the Legislature.
C. The Governor is unilaterally making laws.
D. The Governor’s lawmaking violates the separation of powers.
E. The separation of powers is not diminished by crisis.
F. The EPGA’s delegation of power cannot save the Governor’s COVID-19 executive orders.
1. Under the Governor’s interpretation, the EPGA grants her unbelievably broad power—so much so that it becomes legislative power.
2. Because the EPGA, as interpreted by the Governor, lacks adequate standards, it impermissibly delegates authority to the Governor.
Probably the best argument for when this dispute ultimately gets to the Michigan Supreme Court is that the statute at issue, MCL 10.31-10.33, gives the Governor breathtakingly broad authority as interpreted by the governor’s lawyers therefore, the statute should be given stricter scrutiny when analyzing its application:
“To put it simply: greater delegation requires greater standards. And standards prove especially important when delegating to the Governor, as delegating to the chief executive “pose[s] the most difficult threat to separation of powers, and therefore require the strictest standards.” Kaden, Judicial Review of Executive Action in Domestic Affairs, 80 Colum L Rev 1535, 1545 (1980). The Court should therefore exercise a heightened level of scrutiny and skepticism,” (Plaintiff’s brief at pp 55).

The plaintiffs go on to say that as interpreted by the governor, the Governor’s Emergency Powers Act has no standards for implementation or interpretation, therefore, either the Governor’s interpretation or the statute itself must fall.
The Governor’s office is represented by the Attorney General. Several Assistant AG’s filed a response to the motion seeking a declaratory judgment. The outline for the argument is set forth in the table of contents:

I. The Legislative Plaintiffs lack standing.
A. The Legislative Plaintiffs lack standing because they have no special interest in challenging the executive orders of the Governor that differs in any way from the general interest of the citizenry at large.
B. The Legislative Plaintiffs cannot meet their obligation to show that an actual controversy exists under MCR 2.605.
II. The Governor has the independent authority and duty under both the EPGA and the EMA to declare states of emergency and disaster, and to issue orders to protect the health and safety of the State and its people.
A. The State is granted broad latitude to respond to public health crises.
B. Consistent with the proper exercise of police power, the Legislature passed laws granting the Governor emergency authority.
C. The EPGA grants the Governor broad, but not unlimited authority during a “great public crisis” and “public emergency.”
1. The Governor properly declared a state of emergency under the EPGA
2. The Legislative Plaintiffs’ narrow construction of the EPGA is not borne out by the statute’s plain language, and the heavy reliance on the alleged history of the act is misplaced.
D. In the EMA, the Legislature granted the Governor broad, general powers to cope with emergency conditions; the act also requires the Governor declare a state of emergency and disaster if she finds certain circumstances are present.
1. The EMA grants a broad, general authority to the Governor to “cop[e] with dangers to the state or its people.”
2. The EMA also grants the Governor, upon an emergency or disaster proclamation, distinct authorizations.
3. Consistent with the EMA, the Governor terminated the original states of disaster and emergency; her subsequent disaster and emergency proclamations are required by law.
4. Because statewide disaster and emergency conditions continue to exist, the Governor is duty bound to activate the State’s response, as she did with Executive Order 2020-68.
5. The Legislative Plaintiffs’ responsive arguments fail to account for the language of the act.
a. The Governor’s construction does not yield absurd results.
b. No piece of the EMA is invalidated or rendered nugatory.
6. If the Legislative Plaintiffs are right about the authority to effectively veto the Governor’s declarations under the EMA, the Legislature retained what amounts to an unconstitutional legislative veto under Chadha and Blank.
III. The EPGA contains standards to guide the Governor’s exercise of authority concomitant with the nature of broad, developing emergencies and therefore are not susceptible to non-delegation challenges.
A. The branches of government are not barred from working together, and sharing their authority is permitted so long as adequate guidance is given.
B. Michigan is one of many States that has largely entrusted emergency authority to the executive branch.
I cannot imagine Judge Stephens, the Court of Claims judge hearing the arguments, rules on
the standing issue in a way that just halts the case. The most important part for future legislatures and governors is whether or not the legislature has the right to veto the governor’s EO’s issued properly in a time of emergency under 10.31-10.33. I am not sure why either side sees the need to discuss to any degree the 1976 Act, the Emergency Management Act because that act simply puts a 28 day deadline on a disaster and if the legislature fails to extend, the disaster is over.
The end of a disaster does not mean that an emergency cannot continue and in an emergency, the governor has all the powers that she has under MCL 10.31. If the Emergency Orders are reasonable in terms of scope and in relation to the emergency – I think that the governor prevails.

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Peer Recognition

Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

Mike Nichols is recognized by his peers in Michigan as a “SuperLawyer” in DUI/Criminal Defense. Nichols has also been asked to speak at conferences by groups such as the NCDD; Various Bar Associations in other states.