The Emergency Insurance Legislation Act of 1933 declared an emergency and granted emergency powers to the Michigan commissioner of insurance during the Great Depression. It enabled the commissioner to “prescribe such limits or restrictions upon the disbursements, loans, investment of funds or other disposition of assets of [insurance] companies.”[157] The statute, however, stipulated that these powers expired on March 30, 1935, more than 87 years ago.[158]
The legislation also authorizes the governor to proclaim a new emergency and invoke these emergency powers again. Although the trigger for such an emergency is broadly worded, there is no record of a governor using these powers.[*] The actions the 1933 Legislature envisioned for these emergencies are unlikely to be relevant today, as new regulations and methods of operating have changed the financial and insurance industries over the last nine decades. This statute could easily be repealed.
Another similar statute that appears irrelevant to modern finance and banking is the Suspension of Business of Banks and Savings and Loan Associations Act of 1978. This law grants the Department of Financial and Insurance Services the power to “order a financial institution to close an office or offices.”[159] The trigger for such action is “a condition or occurrence that has or may, directly or indirectly, interfere physically with the conduct of normal business operations of one or more offices of a financial institution, or which poses an imminent or existing threat to the safety and security of a person or property, or both.” The statute was amended in 2006 to add “terrorist attack” as a potential cause of an emergency. It also was expanded to include credit unions.[160]
It is difficult to conceive of how this power would be needed or meaningful in the age of the internet. Closing a physical location where a bank or credit union operates would likely have little effect on these financial institutions. In addition, if some emergency condition affected just the physical offices of financial institutions, the Emergency Management Act would likely afford the governor the power to force those offices to close. Gov. Whitmer used this authority, in part, to force thousands of businesses to close in 2020.
A last emergency power that is unnecessary and could be repealed relates to hunting and fishing. A statute in the NREPA grants the director of the natural resource department the unilateral authority to immediately suspend the open season for hunting game animals and “regulate their taking or killing.”[161] This power may be triggered if “any fish, game or fur-bearing animals, or game birds of any kind or species are in danger of depletion or extermination and require additional protection in any designated waters or area within the state.”[162]
The voter-approved Proposal G of 1996 conflicts with this authority. It added a section to the NREPA that provides for regulating game animals in Michigan and gives that exclusive authority to the Michigan Natural Resources Commission.[163] This is a seven-member, bipartisan body appointed by the governor.[164] The NRC had exercised this authority previously, but it was temporarily transferred to the natural resources director by an executive order issued by Gov. John Engler in 1991.[165] Five years later, Proposal G restored this power to the NRC, rendering the director’s emergency powers obsolete.
It is an act of good governance to regularly clean up Michigan statutes. Duplicative, redundant and conflicting laws create needless legal uncertainty. The public should have unambiguous knowledge about what behavior is prohibited and subject to state penalties. This is especially true for laws that empower unelected state officials to act unilaterally, such as emergency powers laws.
[*] The trigger includes a “period of public calamity resulting in abnormal financial losses to and unforeseen and excessive disbursements by any insurance company, fraternal benefit society or association.” The powers also may be triggered “during any financial emergency,” or during “other similar emergencies, occurring as the result of financial disturbances in business generally, threatened or actual disaster to the banking and other financial institutions of the United States or of this state, and disruption of business and orderly business process resulting in such unusual demands upon the cash or other assets of insurance companies doing business in this state as to endanger the solvency of or threaten insolvency to any such companies and the consequences thereof.” MCL § 550.2.