In Michigan’s COVID-19 Branch-War, the Legislature is Right

A branch-war has erupted in the state of Michigan. The conflict pits Michigan’s Governor, Democrat Gretchen Whitmer, against the GOP-controlled state legislature. The conflict concerns two elements of Michigan’s response to COVID-19.

The first pertains to what to do next. Whitmer wishes to extend most of the restrictions she implemented since March at least through the month of May. A number of legislators desire a more aggressive re-opening, especially in areas less affected by the virus.

The war’s second front concerns who gets to decide which of these routes to take. Whitmer asserts the power to unilaterally extend Michigan’s state of emergency, opening to her extensive powers under such a state. The legislature refused to approve an extension past April 30 and now claims that doing so ends both the state of emergency and Whitmer’s attendant authority. With the legislature suing, the dispute now heads to court.

In a free republic, the law rules. Thus, it forms the standard by which to determine who is right in this dispute.

So, on whose side are the laws of Michigan? At first glance, the answer seems to be both. Whitmer, supported by Attorney General Dana Nessel, rests her authority on the Emergency Powers of the Governor Act (EMPG). This law allows the governor to declare a state of emergency “[d]uring 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.” She then possesses extensive powers to address the emergency, once declared.

Importantly for the current debate, the EMPG only “shall cease to be in effect upon declaration by the governor that the emergency no longer exists.” In other words, it seems only the governor gets to make the call as to when the emergency ends and thus when her powers under it cease.

At the same time, the legislature points to the Emergency Management Act (EMA). This law also allows the governor unilaterally to declare a state of emergency. It also allows the governor extensive power to respond to it.

However, if the state of emergency extends beyond 28 days, the governor must terminate it or “request…an extension of the state of emergency for a specific number of days… approved by resolution of both houses of the legislature.” Without that legislatively-granted extension, the state of emergency and all powers tied to it cease.

So, how do we determine who is right when each side seems to validly interpret a different law in their favor?  Where possible, we should construe these laws in a way that permits each to work. After all, both were passed by the legislature, signed by a governor, and remain on the books as legitimate law.

Here, though, that prospect appears impossible on the crucial point of debate. Either the governor possesses unilateral power to declare when the emergency ends or the state legislature must approve after 28 days.

In such a situation, Alexander Hamilton provides an answer grounded in chronology. In Federalist 78, he discusses Michigan’s current circumstance, that of “determining between two contradictory laws…existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression.” He argued that “[t]he rule…for determining their relative validity is, that the last in order of time shall be preferred to the first.”

Why prefer the most recent law over the older one? Laws express the will of the sovereign, in this case the people of Michigan acting through their representatives. That will can change over time in the form of new laws. When it does, that change forms the clearest current expression of the people’s will. Thus, when we find contradictory articulations of the people’s will on the books, the most recent should be seen as controlling.

Let us apply this standard to the current dispute. The relevant portions of the Emergency Powers of the Governor Act became law in 1945. The relevant portions of the Emergency Management Act passed in 1976. Thus, the legislature rightly sees the latter law as the standard for handling emergency declarations. They rightly see that their concurrence must attend any extension of Michigan’s state of emergency.

Long-term, the legislature should revisit these laws. It should modify either the EMPA or the EMA to make them consistent with each other. Or, even better, it should repeal the EMPA entirely, taking away any pretense of perpetual, unilateral emergency power in the governor. Otherwise, we risk continued, unnecessary confusion over how our government should run in a crisis or the troubling specter of one-person rule.

Till then, the legislature is right on who should decide our response to COVID-19. In this round of Michigan’s branch war, it should win.