A trigger defines the circumstances that must exist for the government to use emergency powers. Governors and state officials cannot exercise unilateral authority whenever they please. A trigger limits this power to a temporary situation that may require immediate state action. Triggers are important because allowing the executive branch to make law unilaterally is otherwise unconstitutional.
Michigan’s emergency powers statutes contain a variety of triggers. Many mention threats or harms to public health and safety, but most statutes use a unique description of an emergency situation. Here are examples from different emergency power statues:
The definitions of the terms used in these triggers matter a great deal. For example, what makes a risk of injury “imminent,” or what qualifies as “serious physical harm”? What does “public health” include, and how does that differ from “public safety” or “general welfare”? Without clear definitions of these terms, the executive branch gets to determine whether these conditions are met.
An effective trigger is unambiguous and specific. It creates a distinct demarcation of when emergency conditions exist. It defines these circumstances precisely, often relying on a measure of a threat or harm that can be quantified and verified. Some triggers in Michigan law are designed this way, but others are severely lacking.
An example of a well-designed trigger can be found in a Michigan statute that grants governors the power to declare a state of energy emergency. The law says a governor may do this only when there is “a condition of danger to the health, safety, or welfare of the citizens of this state due to an impending or present energy shortage.”[18] Existing or impending energy shortages can be quantified and confirmed, making this trigger’s definition of emergency conditions specific enough to both guide executive action and protect against its misuse.
The Emergency Management Act of 1976, the most regularly used emergency power law, also contains a robust trigger. It names specific circumstances under which it may be used: fires, floods, snowstorms, ice storms, tornadoes, windstorms, oil spills, major transportation accidents, epidemics, droughts, infestations, explosions and more. But the law has a weakness: It also states that its use is “not limited to” the situations it names.[19] Thus, governors could use it for other purposes they alone determine are appropriate.
The now-repealed Emergency Powers of Governor Act, on the other hand, is an example of a law with an insufficient trigger. The statute said that governors could invoke emergency powers “during times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state, or reasonable apprehension of immediate danger thereof, when public safety is imperiled.”[20] The statute is silent about what constitutes a great public crisis, disaster, catastrophe or a similar public emergency. As a result, governors had complete discretion to determine when to use these emergency powers. Other key terms, such as “reasonable apprehension,” “immediate danger” and “imperiled,” were also left undefined. Not surprisingly, governors have invoked this statute in many different situations: threats of coal shortages, labor strikes, urban riots, high mercury levels in lakes and rivers, and, most recently, a novel respiratory virus. Also not surprisingly, its use has often been controversial.[21]
If a trigger lacks details, it could allow the executive branch to grant itself lawmaking authority in situations the Legislature did not intend to provide it. As with the EPGA, many existing emergency powers statutes leave a substantial amount of discretion to governors or state officials over when emergency authority may be triggered. In these cases, executive branch officials determine for themselves when they may use broad, unilateral powers. This is concerning, as it undermines the separation of powers protection that statutory triggers are designed to maintain.
The Administrative Procedures Act of 1969 provides an example of a poorly constructed trigger. This law controls the process state agencies and departments must use when they make rules and regulations that have the force of law. The APA, however, gives bureaucrats a way to skip these procedural requirements by issuing what the statute calls emergency rules. These can be created unilaterally by a department and may last up to one year.
The APA provides little guidance about when these emergency rules may be issued. The statute states: “If an agency finds that preservation of the public health, safety, or welfare requires promulgation of an emergency rule … the agency may dispense with all or part of the procedures and file … an emergency rule.”[22] This is an ineffective trigger because it relies on broad terms, such as “preservation,” “public health,” “safety” and “welfare.” Equally troubling, it leaves the determination of what situation requires emergency rules to the discretion of bureaucrats who are not directly accountable to voters.
The APA says that the governor must sign off on these emergency rules, but this provides only a weak check on a department’s powers.[23] The decision remains exclusively within the executive branch; it does not involve a separate branch of government. In other words, the APA allows the executive branch to determine unilaterally when it may grant emergency powers to itself. It is worth pointing out that directors of state agencies serve at the pleasure of the governor.[24] As a result, the provision that an emergency rule cannot take effect without a governor’s signature is little more than a formality.
This weak trigger allows departments to take a broad view of when emergency rules are needed. State bureaucrats have justified emergency rules simply when they want to issue rules quickly — not necessarily when the public’s health, safety or welfare is at risk.
For instance, an emergency rule issued within the first decade of the APA required some real estate developers to register with the state. Another tweaked how gas stations reported prices to the state, while others imposed licensing and registration requirements on automobile repair shops and mobile home dealers.[25] The state even once issued emergency rules to require horses used in a parade in the St. Joseph County community of Mendon be tested for an infectious disease.[26] While there may have been legitimate state concerns in each of these situations, it is difficult see how public health or safety was at risk.
In some cases, agencies use emergency rules simply to buy themselves time as they prepare permanent rules.[*] This occurs when the Legislature passes a law that enables a department to promulgate new regulations to deal with a particular concern. Because the process of preparing and posting new rules is time-consuming, agencies sometimes issue an emergency rule, which has immediate effect. They then get to regulate behavior right away while having to 12 months to go through all the steps of creating a permanent rule.
Officials have used emergency rules to protect the state’s finances from the consequences of inadequate or ineffective state action. Gov. James Blanchard considered using them in 1984 to avoid financial sanctions from the U.S. Environmental Protection Agency, for instance.[27] The state treasury department in 1997 created emergency rules to require cigarette wholesalers to attach a tax stamp to every pack. Legislation requiring tax stamps was in the works, but the department sought immediate rules to boost and protect state tax revenue from the perceived growing threat of cigarette smuggling.[28]
The APA’s trigger is ineffective because it fails to constrain the use of emergency powers by the executive branch to specific situations. This is evidenced by wide-ranging application of emergency rules in Michigan’s history. The APA’s broad terminology and weak constraints allow departments to use unilateral authority whenever they are compelled to act quickly, not necessarily when the preservation of the public health, safety or welfare might necessitate it.
[*] For instance, the Department of Natural Resources issued emergency rules in 1975 to ban the use of nets in commercial fishing for Lake Michigan chubs. It did this while simultaneously seeking to establish permanent rules to the same effect. John Vanden Heede, “Snoopin’ Around” (The Herald-Palladium, Saint Joseph, Mich., June 24, 1975), https://perma.cc/P9P4-NRX6.