Emergencies are situations that require immediate action. Emergency powers may only be used under these conditions. The need for immediate action diminishes with time, and emergency conditions end. A problem may be permanent, but there is no such thing as a permanent emergency. So, emergency powers, by definition, must be temporary.
This is not a mere quibble about language. Limiting the duration of emergency powers is necessary if public officials are to maintain the rule of law and separation of powers. As the government’s only creator of official law, the Legislature must control these aberrations to the constitutionally required lawmaking process and determine when they expire. If the executive branch could maintain lawmaking authority for however long it chose, there would be no functional separation of powers.
Durational limits are less complex than triggers and scopes of authority. They simply specify how long a grant of unilateral authority to the executive branch may last. Many grants of emergency powers in Michigan statutes fail to achieve this, however.
The most common problem with durational limits is that they do not stipulate a precise end date for emergency powers. Most statutes recognize or imply that the unilateral powers they authorize end when the emergency is over, but many defer the decision of when that occurs to the executive branch.
The controversial and now-repealed Emergency Powers of Governor Act provides a clear example. The first section of the statute authorized unilateral orders, and the second section addressed how long that authorization may last. It stated that the orders would “cease to be in effect” upon “declaration by the governor that the emergency no longer exists.”[33] This formulation meant that the governor alone would decide how long unilateral emergency powers would last.
This deference to the executive branch conflicts with the constitution’s requirement for a separation of powers between the branches of government. As mentioned, the EPGA also featured an ambiguous trigger that left to the governor the decision about what constitutes an emergency. This meant governors themselves could autonomously determine when they could grant themselves unilateral authority and for how long. This lack of durational restraint on the use of these powers was one thing the Michigan Supreme Court identified in its ruling that Gov. Whitmer’s use of the EPGA was unconstitutional.[34]
A well-designed emergency powers statute establishes a precise length of time when these powers may be used, and once that duration has ended, the unilateral authority automatically expires. This mechanism is consistent with the temporary nature of emergencies and prevents the executive branch from violating the constitutionally requirements for separation of powers.
The Emergency Management Act of 1976 contains a model durational limit on the executive power it authorizes. The statute stipulates that a “state of disaster” or “state of emergency,” circumstances enabling the governor to wield emergency powers, may persist for a maximum of 28 days.[*] After that time has passed, the governor must terminate the disaster or emergency and all lawmaking authority reverts to the Legislature.[35]
Time limits that require emergency powers to automatically expire provide a rigid restraint on the use of unilateral, executive authority. Statutes can be designed, however, to provide a flexible limit, while still respecting the state constitution’s separation of powers requirement. A law may, for example, contain a procedure by which the Legislature can prolong the automatic expiration of an emergency.
Both the energy emergency statute and the EMA include such a mechanism. A state of energy emergency can last a maximum of 90 days unless the Legislature votes to extend it. Legislators would need to pass a resolution specifying the length of the extension and do this by a majority vote in both chambers.[36] Under the EMA, the governor may ask legislators to extend the authorized use of emergency powers for a specified number of days. The Legislature must approve of this extension by passing a resolution to that effect.[37]
Durational limits are an important tool to prevent the executive branch from misusing emergency powers. Emergencies are temporary events, so this authority must expire. Statutes granting the executive branch extraordinary powers should require that they automatically expire after a specified length of time. Using powers beyond this hardcoded expiration date should only be possible if the Legislature approves, thereby preserving separation of powers.
[*] The bill that became the EMA of 1976 did not originally contain any time limit, and, like the EPGA, deferred entirely to the governor’s discretion to determine when this unilateral authority would expire. A 14-day limit was added to the bill during legislative proceedings and before it was signed into law by Gov. William Milliken on Dec. 30, 1976. This limit was increased to 28 days in 2002. “House Bill No. 5314” (State of Michigan, June 5, 1975), § 3(3), https://perma.cc/26QZ-X7L3; “Enrolled House Bill No. 5314” (State of Michigan, 1976), https://perma.cc/4ZGX-UY4F; “Public Act 132 of 2002” (State of Michigan, March 29, 2002), https://perma.cc/JX22-AE3N.