The exercise of emergency powers by the executive branch, on its face, violates the constitutional requirements for creating law through legislative procedures. It disregards democratic decision-making, the rule of law and maintaining a separation of powers among the three branches of government. Emergency powers, therefore, are only proper if the Legislature creates constraints on their use. In other words, the Legislature cannot properly delegate its lawmaking authority to the executive branch without maintaining some control over the use of this authority.
The Michigan Supreme Court’s decision in October 2020 that struck down Gov. Whitmer’s use of emergency powers made this clear. The court found that the only constraint in the 1945 Emergency Powers of Governor Act used by Gov. Whitmer was that the unilateral orders it authorized be “reasonable” and “necessary.” This requirement did not provide “genuine guidance … nor constrained the Governor’s actions in any meaningful manner,” the court said.[5] It was for this reason the court declared the EPGA unconstitutional.
The dissenting justices argued that “reasonable” and “necessary” were in fact sufficient constraints on the Legislature’s delegation of power to the governor.[6] Their argument raises an important point: It is not the mere existence of constraints that matters. All emergency power statutes in Michigan contain explicit or implied controls of some kind. What matters is how effectively the statues limit the delegation of the Legislature’s constitutional, lawmaking authority.
Determining whether a textual constraint is strict enough is not an easy task. But the Michigan Supreme Court offered guidance in its 2020 decision. The court explained that the broader the delegation of power to the executive branch, the stricter and more precise the statutory constraints must be.[7] Many emergency power laws grant considerable power to the executive branch, so they should include strict and precise controls on their use.
There are four types of constraints that are commonly found in emergency power laws. Not all emergency power laws in Michigan contain each type, but many do. They vary widely in their wording and specificity, however. The effectiveness of these constraints varies, based on the language used in a statute. The four types of constraints are: