Emergency power laws also prescribe procedures executive branch officials must follow when using this authority. These measures prevent misuse of power by requiring a level of checks and balances, often through a separation of powers.
Michigan’s emergency power laws contain a variety of procedural requirements. Some include multiple mandates, but others have none. One of the most common requirements is that officials notify the public or persons affected by the emergency action. Several emergency powers laws require departments to hold a public hearing about their emergency orders.
A 1945 statute charges the state agricultural department with preventing the spread of insect pests and plant diseases. It empowers the agency to “enter any premises in the state” to examine vegetation for such threats and to exterminate them if found.[38] Before the department may destroy any plants, however, it must comply with a list of procedural requirements.
After identifying a dangerous pest or disease, the department must “make a complete report” of the finding and justify the need to destroy the affected vegetation.[39] The statute also requires it to provide written notice to owners of the property that harbors the threat. Notices, at least one foot square in size, must also be posted in four “conspicuous places in the area” and mailed to every known owner or occupier of land affected by the department’s orders. Officials must do this at least 15 days before they remove the pest or disease. Property owners, within 10 days of being notified, may appeal the state’s decision to order their plants be destroyed.[40]
These procedural requirements protect the rights of property owners. They allot them time to prepare for and challenge the department’s decision. Several emergency powers laws in Michigan included similar protections.
For instance, a handful require departments to hold a hearing within a certain number of days of issuing unilateral orders that affects businesses or individuals. The state environmental department must hold a hearing within seven days if it revokes a business’s license to handle solid waste.[41] Similarly, it must provide a hearing within 15 days of issuing an emergency order to a dam owner.[42]
Other requirements are aimed at involving another branch of government in a department’s use of emergency powers. This provides a check on the executive branch. For instance, a statute empowers the state’s environmental department to “restore, reclaim, abate, control or prevent the adverse effects of coal mining practices” if the public health is threatened.[43] Before entering private property, however, the agency must obtain a warrant from a court, authorizing its actions.
A 1956 statute grants the state health department the power to unilaterally order drain commissioners to modify drain or sewer operations. But before the state can enforce these orders, the department must obtain the approval of a county judge.[44]
Procedural requirements constrain the power of the executive branch when it takes emergency actions. They protect individual rights, whose only other recourse is the slow, lengthy and expensive conventional legal system. It took the courts months to rule on cases against Gov. Whitmer’s use of emergency powers to respond to COVID-19, for instance. Requirements for hearings and other judicial checks are important means to protect citizens and others in the private sector against officials who would abuse individual and property rights.