Analyzing the Michigan Legislature’s Motion for Declaratory Judgment Part II - Arguments Raised by the Legislature

Introduction

In the previous article, I laid out the background of the Legislature’s case, the relevant statues, and an analysis of the relief sought by the Legislature.  This article addresses the arguments raised by the Legislature.

Summary of the Legislature’s Arguments

The Legislature argues (1) the Governor did not have authority to issue any executive orders related to COVID19 after April 30, 2020; (2) the EPGA only applies to local emergencies, not state-wide emergencies; and (3) the Governor’s actions are unconstitutional.

The Governor’s Lack of Authority After April 30, 2020 Under the Emergency Management Act

This argument is very straightforward.  The text of the EMA allows a governor to declare a state of emergency or disaster on her own but requires the approval of the legislature to extend the declaration beyond twenty-eight days.  MCL §§ 30.403(3), (4).  There is nothing in the text of the statue that permits a governor to extend a declaration unilaterally.  The very text of the statute supports the Legislature’s argument.

This argument also hits the mark by arguing that any effort by the Governor to declare a new emergency as a work-around of the twenty-eight-day limit defeats the legislative intent of imposing the twenty-eight-day limitation.  Clearly, the intent of enacting the EMA was to ensure that if a governor desired to employ all of the powers provided by the statute, she must obtain the approval of the legislature to extend a declaration of an emergency or a disaster beyond twenty-eight days.

The Scope of the Emergency Powers to the Governor Act

The Legislature fails at its argument on the EPGA.  It begins by admitting that a statute is interpreted by its plain language, but then the Legislature goes on to ignore the language of the statute.

To start, the Legislature argues that the EPGA only applies to local emergencies because it allows a governor to respond to emergencies “within” the state.  The Legislature argues that “within” only means part of a larger whole, not the whole itself.  In doing do, the Legislature overlooks the antonym of “within,” which is “without.”  In this context, “without” means outside of the State of Michigan.  Thus, the plain meaning of “within” means inside of, and possibly the entirety of, the State of Michigan.

The Legislature attempts to argue that if the intent of the EPGA was to apply to the entirety of the State, the term “throughout” would have been used.  This argument fails at the start.  The term “throughout” would imply that the EPGA can only be used if the emergency impacts the entire state, not just a part of it.  The term “within” was used to allow a governor to address emergencies that impacted a part of Michigan, or the entire State.

Next, the Legislature focuses on the EPGA’s use of the terms “area,” “section,” and “zone,” which address a governor’s ability to promulgate reasonable orders to address an emergency.  The problem with this argument is that it ignores a vital word in the EPGA: “affected.”  The EPGA allows a governor to “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.”  MCL 10.31 (emphasis added).  The use of the term “affected” shows that the intent of the EPGA was to allow a governor to address an emergency in any location impacted by the emergency.  Covid19 cases are reported in every county in Michigan.  Thus, the entirety of Michigan is an “affected area” and the EPGA allows the Governor to invoke the statute to address the emergency for the entire State.

Next, the Legislature makes an argument in which it leaves out language of the EPGA to make its point.  The flaw with this tactic is that by purposefully leaving out statutory language that is unfavorable to the argument, a litigant fires off a signal flare to adversaries and the court that the language derails the argument.

The Legislature cites a list of officials who may ask a governor to declare a state of emergency.  In doing so, the Legislature leaves out that the governor may declare a state of emergency “upon his or her own volition.”  MCL § 10.31.  Purposefully omitting the language from the EPGA permitting a governor to declare a state of emergency without need of any application from a local official telegraphs that the Legislature is aware that this language refutes its argument that the EPGA only applies when local emergencies arise.

Another flawed tactic is asking the court to interpret the EPGA through the lens of the EMA using the canon in pari materia.  There are several problems with this approach.

The first is that canons of construction are employed only when the intent of a statute cannot be discerned by its plain language.  The Legislature makes no effort to cite to any ambiguity.  Instead, it appears to argue that since the language of the EMA is more favorable to it, the court should ignore the EPGA -- or at least twist its language to interpret it as only applying to emergencies on a local level.

Another issue is that while the court may analyze the EMA by looking at the EPGA, it cannot do the reverse.  In passing the EMA in 1976, the legislature was certainly aware of the EPGA and possibly used it to shape the language of the EMA.  However, the legislature in 1945 could not have any idea what a legislature in 1976 would do, so the language of the EMA provides no insight into the legislative intent of the EPGA.

Most importantly, the EMA specifically addresses the EPGA:

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 Act No. 302 of the Public Acts of 1945, being sections 10.31 to 10.33 of the Michigan Compiled Laws, 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.  Thus, the clear intent of the EMA was not to interfere with a governor’s ability to invoke the EPGA.

The Legislature makes an unfocused argument that since the EMA allows a governor to declare a state of disaster, but the EPGA goes not means that the EPGA does not apply to state-wide emergencies.  This argument makes no sense and ignores the language of the EPGA -- as prior arguments did.  The EPGA allows a governor to invoke the statue for any “great public crisis, disaster, rioting, catastrophe, or similar public emergency.”  MCL § 10.31.  This language expressly allows a governor to use the statute to deal with a disaster.  The EPGA goes on to allow a governor to declare a state of emergency to address any of these.

While it is true that the EMA distinguishes between an emergency and a disaster, it also expressly states that it does not impact a governor’s ability to invoke the EPGA in any way, which means that a governor can employ the EPGA to address a disaster.

The next argument by the Legislature is that the administrative components of the EMA prove that the EPGA only addresses local emergencies.  Again, the Legislature is asking the court to interpret the intent of the legislature in 1945 by looking at the conduct of the legislature in 1976, or even later.  Since the legislature made no change to the EPGA when enacting the EMA -- and expressly stated that the EPGA was left intact without restrictions -- the administrative components of the EMA are not instructive on the scope of the EPGA.  Instead, the administrative components of the EMA make a governor’s task in managing a crisis easier because she is not required to create ad hocagencies or bureaus through executive orders; the EMA created them for her.

The Legislature commits the mortal sin of litigation in asking a rhetorical question: why would a governor invoke the EMA when she can simply use the EPGA without the need for legislative cooperation?  The reason rhetorical questions are a mortal sin in litigation is because they frequently blow up in the face of the inquisitor, which is what happens here.  Also, using rhetorical questions in legal arguments telegraphs unbridled arrogance.

The EMA provides an arsenal of resources to ease the management of a crisis.  As long as the governor and legislature can cooperate, the EMA is more efficient.  Employing the EPGA requires more work and time to access resources that are ready by simply invoking the EMA.

Both the EMA and the EPGA show that the legislatures in 1945 and 1976 were wiser than current times.  The absence of legislative cooperation in the EPGA -- and the express endorsement in the EMA to allow a governor to act in a crisis without legislative approval by invoking the EPGA instead -- demonstrates an awareness that a crisis may be of such magnitude that legislative approval is not possible.

If the Legislature is correct and the EPGA only applies to local emergencies, then it is possible that a severe crisis could completely prevent a governor from maintaining a state of emergency.  In the present crisis, if enough members of the Legislature fall ill to Covid19 to prevent forming a quorum to conduct business, then any state of emergency would end after twenty-eight days because the Legislature is incapable of consenting to an extension.  Such a result is not only absurd, but dangerous.

Also, the sager legislatures of 1945 and 1976 potentially recognized that partisan politics might prevent an agreement between the legislature and a governor.  By leaving the EPGA available, a governor may focus on addressing a crisis rather than playing politics.  Of course, the governor is held to account once the crisis abates.  That is another reason why a governor may prefer the EMA over the EPGA: a desire to avoid taking solitary blame for the management of a crisis.

None of the cases cited by the Legislature in its brief ruled that the EPGA did not apply to state-wide emergencies.  This is because none of the cases addressed state-wide emergencies.  The Legislature argues that it cannot find a single instance in which the EPGA was used to address a state-wide emergency.  Of course, the Legislature also fails to mention if Michigan has ever experienced a state-wide emergency since 1945; or ever.  Not even the Great Fire of 1871 burned in every county.

Throughout its argument on the scope of the EPGA, the Legislature argues that others have always construed the statute as applying to local emergencies.  The opinions of others -- even former governors -- is irrelevant.  The only relevance is the language of the statute, which simply does not support that the EPGA is limited to local emergencies. Quite the opposite: the EPGA’s language clearly establishes that a governor may invoke to address any emergency without limiting it to localized emergencies.

The Legislature’s Constitutional Argument

The arguments by the Legislature that the Governor’s April 30, 2020 orders are unconstitutional fare no better than its arguments that the EPGA only applies to local emergencies.

Since the EPGA provides the Governor with the authority to issue executive orders to address an emergency, she is acting within the authority provided by Michigan’s Constitution.  The Legislature’s separation-of-powers argument similarly fails because the EPGA expressly grants the Governor with the authority to issue executive orders that are necessary to address an emergency.  Of course, the Governor’s orders must be (1) reasonable; and (2) necessary to manage the emergency in order to fall within the scope of power granted by the EPGA.  The Legislature offers no evidence that the Governor’s orders are unreasonable or unnecessary.

The Legislature accuses the Governor of unilaterally making laws, which it argues is an unconstitutional foray into the realm of the Legislature and violates the Separation of Powers doctrine.  The flaw here is that the argument proves too much.  Taken to its logical conclusion, any executive order would be unconstitutional; even those issued during crises.  Under the EPGA, the Governor is empowered to promulgate reasonable orders that are necessary to address an emergency.  While the Legislature lists multiple ways the Governor’s orders have impacted the lives of Michiganders, it offers no proof that the orders are unreasonable or unnecessary to ensure public health and safety.

In a last-ditch effort, the Legislature argues that if the EPGA does indeed apply to state-wide emergencies, it is an unconstitutional grant of legislative power to the executive branch.  This argument, like most of the others, is not thought through.

To start, the EPGA certainly satisfies the elements of State Conservation Dept v Seaman, 396 Mich 299 (1976).   The limits on a governor’s power under the EPGA are that her actions must be reasonable and necessary.  The Legislature admits this in its brief but argues that such parameters are insufficient without elaboration.

Next, the Legislature argues that the subject matter of the Governor’s authority under the EPGA is insufficiently precise to pass constitutional muster.  In doing so, the Legislature demonstrates a failure to appreciate that the subject matter of the EPGA is determined by the nature, severity, and duration of the crisis in question.  Since such emergencies cannot be accurately predicted, the only possible measure is reasonableness and necessity.

As to the third element, the reasonableness and necessity required by the EPGA provides a sufficient measure of the discretion the Governor may exercise.  In the present situation, the measure of the Governor’s authority is dependent upon the spread of Covid19 and its ability to overwhelm Michigan’s hospitals.  Once the data shows that the healthcare system is of out of danger of being crushed, the Governor must lift restrictions.  Far from arbitrariness, the limits on the Governor’s authority during this crisis under the EPGA is purely data driven.

In arguing that the EPGA is unconstitutional, the Legislature demonstrates recklessness.  First of all, if this argument prevailed, it would mean that every time the EPGA was invoked between 1945 and 1976 was an unconstitutional exercise of executive power.  This has potentially disastrous implications depending on what actions governors took under the EPGA during those years.  In addition, striking down the EPGA would render a governor completely incapable of addressing a crisis that lasted more than twenty-eight days if the legislature could not summon a quorum to transact business.  Simply put, the Legislature did not think this argument through prior to making it.

Additionally, the Legislature is not without power to act.  It can vote to amend the EPGA to impose similar time restrictions as those found in the EMA.  If the Governor vetoes the effort, the Legislature has the opportunity to override her veto.  Thus, the power still rests with the Legislature.

In the end, the Legislature’s arguments are not compelling.  As explained above, the very language of the EPGA permits a governor to invoke to address an emergency anywhere in the state.  There is no language that prohibits its application to state-wide emergencies.  The EMA expressly states that a governor may still use the EPGA to address emergencies.  Since the EPGA limits a governor’s actions to those reasonable and necessary to address an emergency, it is not an unconstitutional grant of legislative power to the governor.  Simply put, the Legislatures arguments are without merit.