The Michigan Supreme Court recently denied a request to reconsider its decision holding that under constitutional separation-of-powers principles, a state statute giving “any person” the right to bring a lawsuit challenging alleged harm to the environment is improper. Ironically, the Michigan Supreme Court is being criticized for a “political” result when that result comes from applying the long-recognized standing doctrine that is meant to keep the courts from engaging in political activity.
Specifically, the criticism of the court has taken two forms: (1) that the court often professes to apply the plain language of a statute yet did not let “any person” bring suit; and (2) that this decision was an attempt to help business at the expense of the environment.
One would think that no serious commenter would make the first argument as it does not matter if a statute that violates the constitution is clearly written. If Congress were to pass a law tomorrow that said “Government may limit any free speech it wants to,” that statute would be overturned for violating the First Amendment. This point seems too obvious to need stating, but some editorial boards and commentators don’t seem to understand this basic principle or are intentionally ignoring it.
The second argument is also without merit; the Michigan Supreme Court did not decide this case on the basis of the parties; rather, it decided it consistent with its previous standing cases. The standing requirement is an outgrowth of the separation-of-powers doctrine.
In his seminal 1835 work “Democracy in America,” Alexis De Tocqueville recognized the unique manner in which the American judiciary worked. First, while we now take it for granted, the concept that the judiciary could declare an act of Congress to be unconstitutional was (and to a certain extent still is) revolutionary. But this extraordinary power was mitigated because judges could only exercise this power when a law was challenged during litigation. If no one challenged a law in court, then the courts could not rule on it. De Tocqueville explained:
“The political power which the Americans have entrusted to their courts of justice is therefore immense, but the evils of this power are considerably diminished by the impossibility of attacking the laws except through the courts of justice. If the judge had been empowered to contest the law on the ground of theoretical generalities, if he were able to take the initiative and to censure the legislature, he would play a prominent political part; and as the champion or the antagonist of a party, he would have brought the hostile passions of the nation into conflict. But when a judge contests a law in an obscure debate on some particular case, the importance of his attack is concealed from public notice; his decision bears upon the interest of an individual, and the law is slighted only incidentally.”
Thus, the standing doctrine is meant to keep the court clear of current political controversies. The theory is that only where there is a litigant with a real stake in a controversy, not a generalized grievance against a government action, should the courts exercise their awesome power.
Consider the state’s recent budget “crisis.” Michigan’s Constitution states “No money shall be paid out of the state treasury except in appropriations made by law.” It also states “The legislature shall impose taxes sufficient with other resources to pay the expenses of state government.” Assume that a budget agreement had not been reached on Oct. 1 and that the government continued some operations despite no appropriations bills having been passed.
At 12:01 a.m., should the courts have entertained a lawsuit from those who wanted to limit spending and perhaps a separate lawsuit from those who wanted to increase taxes? Since we all receive some sort of state assistance, could any Michigan resident have brought a suit? Would the MEA or other public-sector unions really want judges determining the proper amounts of taxes and expenditures? Asked another way, are there some issues that must be resolved by the political branches and cannot be resolved by the courts?
There is some serious scholarship that contends that the standing doctrine impedes challenges to unconstitutional actions by the legislative and executive branches. These people contend that all constitutional provisions must have a judicial remedy and therefore that someone must always have standing to bring suit.
Regardless of whichever viewpoint is correct, the Michigan Supreme Court’s critics are off base when they allege that the identity of the parties will determine the results of a case. This court’s decisions are driven by application of separation of power principles that exist in part to keep the courts neutral in the political controversies of the day.
Patrick J. Wright is a former Michigan Supreme Court commissioner and legal analyst at the Mackinac Center for Public Policy, a research and educational institute headquartered in Midland, Mich. Permission to reprint in whole or hereby granted, provided that the author and the Center are properly cited.