MICHIGAN’S TRAUMA CAN BE ‘UNLOCKED’

How did we allow ourselves to be eviscerated?

The coronavirus is bad enough, but it has been the REACTION to it by politicians that has consigned 10 million Michiganders to endless suffering.

It took 75 years, 11 governors and 38 Legislatures to create a constitutional gridlock that has crippled the state’s economy, closed schools and universities, destroyed businesses, suspended all sports and indoor and outdoor events, mandated face masks and ‘social distancing,’ curtailed religious worship and funerals, poisoned political discourse even more than it already was, and damaged governments’ ability at all levels to address social and infrastructure challenges that will now grow ever worse.

It all began with a classic Law of Unintended Consequences, passed in 1945 by the 63rd Michigan Legislature, called the Emergency Powers of Governor Act (EPGA), aka the “Riot Act.” Clearly, the statute was enacted in response to the catastrophic 1943 Detroit race riot. The statute was approved by a Republican-controlled Legislature but with a Democratic co-sponsor and strong bipartisan support. The EPGA was written by Donald S. Leonard, a regional commander for the Michigan State Police (MSP) who was responsible for metropolitan Detroit. The MSP felt it would be better able to handle riots if it had clear authority to control crowds, which the EPGA was meant to provide. The bill roared through the Legislature in less than three weeks with no amendments. It was signed on May 25, 1945, by Republican Gov. Harry Kelly, who never used it, and has remained substantively unchanged ever since.

One important point: the EPGA failed to provide any check on a runaway governor, although at the time nobody thought that would be necessary, and it would not be a problem for three-quarters of a century.

Then, a dozen years later, the 1957 flu pandemic hit the country, including Michigan. Democratic Gov. G. Mennen (Soapy) Williams, who had to deal with a Republican-controlled Legislature just as current Democratic Gov. Gretchen Whitmer does today, never pulled the EPGA trigger, and neither did George Romney nor William G. Milliken in 1968 when another flu pandemic swept through the nation and recurred for three years into the 1970s. These two Republican governors faced a Democrat-controlled House of Representatives, with the Senate closely divided.

Flash forward to 2020, when Whitmer chose a completely different approach. Whitmer’s unprecedented use of the EPGA to make unilateral decisions about the state’s response to the COVID-19 pandemic has never been used for such a purpose before.  In fact, the EPGA had never been used for any purpose at all since 1970. When it was used before 1971, it was only to deal with local civil disturbance emergencies, according to a report released Aug. 31 authored by the Mackinac Center for Public Policy’s research director, Michael Van Beek.

Before this year, the EPGA was used 11 times in response to five emergency situations: labor unrest in Hillsdale in 1964, urban riots in 1967 and again in 1968, and twice in 1970, once for high mercury levels in Lake St. Clair and Lake Erie and a second for a minor riot in Ypsilanti.

Indeed, the EPGA was not used at all for nearly two decades after it was originally enacted. Then, in 1964, violent confrontations broke out in Hillsdale as a result of labor unrest at the Essex Wire Corporation plant, and Gov. George Romney declared the state’s first emergency under the EPGA. Its constitutionality was immediately called into question, but Romney would use it seven more times in 1967 and 1968, each time in response to an urban riot.

Gov. William Milliken is the only other governor to declare an emergency under the EPGA (before this year). After high levels of mercury were found in Lake St. Clair in 1970, he banned fishing there and later banned commercial walleye fishing on Lake Erie. Gov. Milliken’s order was eventually ruled unconstitutional by three lower courts and the ban became unenforceable (ominously in view of later events, one judge wrote: “The governor’s year-old ban has been continued too long, and … the Legislature should have acted if there was still an emergency.”) Also in 1970, Milliken declared an emergency under the EPGA for a small, short-lived riot at Eastern Michigan University.

Milliken, realizing something was wrong with the law, then pushed for legislation aimed at improving the state’s ability to handle emergency situations, including, for the first time, pandemics. A Democratic state representative, Ray Kehres (D-Monroe Co.), introduced it as HB 5314 on June 5, 1976.  The House passed it on June 25, 88-14, with one of the “No” votes coming from conservative Republican Ed Fredricks of Holland, who argued that he thought the bill gave too much power to the governor and that the Legislature had no “skin in the game.” Nearly six months later, a Senate substitute emerged from committee with a stipulation that a governor could issue EOs lasting only 28 days, at which time any continuation required legislative approval. The Senate substitute, which had 10 Democratic and two Republican as co-sponsors, passed on Dec. 8, by a vote of 31-1. The House suspended its rules and concurred the same day, Dec. 8, by a vote of 73-9.

An analysis of HB 5314, uncovered by the Mackinac Center’s Van Beek, was issued the day before the bill initially passed the House, and it is telling: “Michigan’s experience with three major disasters in the last 13 month has pointed up the inadequacy of the state’s Civil Defense Act (of 1953). The act has proven unwieldy to implement during disasters, largely because jurisdictional responsibility is not clearly defined. Further, the act, which became law in 1953, does not conform to current federal requirements which it must meet in order to qualify for federal disaster assistance. While the state has been able to borrow federal funds during the recent disasters, it is unlikely that the ability to borrow would continue if Michigan’s disaster legislation is not changed. For these reasons, legislation has been proposed based on a (national) model bill which has proven effective in other states and which implements federal disaster law.”

The new legislation, named the Emergency Management Act (EMA), was signed into law by Milliken on Dec. 30, 1976  (PA 390). The EMA specifically lists EPIDEMICS as situations it is meant to address (which the 1945 “Riot Act” did NOT). The EMA quickly became the preferred method for handling disasters since its enactment: Michigan governors have used it 83 times since 1977, according to the MSP.

The Mackinac Report also notes that Milliken and lawmakers in 1976 “did not consider using the EPGA for (epidemics), nor did they consider amending it to deal with the inadequacies of the Civil Defense Act.” It is apparent that Milliken and legislators believed  the 1945 Riot Act (EPGA) had “a limited, defined use that made it ill-suited for the types of emergencies this new legislation (the EMA) meant to address.”  The EMA targets included fires, windstorms, oil spills, water or air contaminations, blight, drought, infestation and EPIDEMICS.”  The riots and “other civic disturbances” that were covered by the EPGA were explicitly exempted from the new law, suggesting Milliken and lawmakers aimed to leave those to the EPGA.

“Gov. Whitmer’s interpretation and use of the EPGA is completely novel,” says Van Beek, author of the Mackinac Center report. “Constitutional concerns followed previous uses of these powers, but Gov. Whitmer has taken these to a new level. No other governor has attempted to use the EPGA to gain unilateral control over an emergency for an indefinite period.”

So, has Whitmer been within her rights to break with three-quarters of a century of interpretation of this particular issue? The courts certainly think so. With the exception of a single judge (part of a dissent), she has won in court on virtually every challenge to her authority to use the EPGA as she sees fit. Every plaintiff in the lawsuits against her — ranging from the Court of Claims, Circuit Court, state Court of Appeals, as well as the federal bench — has LOST, or won at best only a partial, sometimes temporary victory. Only one judge who actually looked at what governors and successive legislatures said and did over time wrote in his opinion that use of the EPGA to address any kind of emergency other than civil disturbances “doesn’t make sense” in the eyes of elected officials who wrote the law.

So we shouldn’t expect the state Supreme Court to surprise us with some “Solomonic wisdom,” or even common sense. Yes, that’s what the Founding Fathers and delegates to Michigan’s constitutional conventions were hoping for from the judicial branch of government. They have seldom gotten it in important cases, from either national jurists or, certainly here in Michigan, at the state level. Instead, as Mr. Dooley said: “The court follows the election returns.” And when a piece of legislation is written as broadly as the 1945 Riot Act, it gives judges all the more excuse to make the wrong call, i.e., in this case, allow one person, even a governor, to make arbitrary, unilateral decisions that have caused massive damage to the state and so enraged a portion of her constituency that she has had to ask for more than a million dollars in extra security for the governor’s residence in Lansing.

So, is there any hope for relief from this reign of terror?