Michigan Attorney General Dana Nessel has joined 14 other states to sue President Trump for improperly declaring an energy emergency. But Nessel did nothing when Gov. Gretchen Whitmer exceeded her emergency authority.

Whitmer used emergency powers to order some of the nation's most severe COVID-19 lockdowns. Nessel supported the governor's unprecedented actions every step of the way. The Michigan Supreme Court later ruled that the governor had misused these powers.

Nessel defended the governor’s improper use of emergency authority in 2019, too. The Whitmer administration used the pretext of a public health emergency to impose a unilateral and immediate ban on flavored vaping products. Courts shot down these emergency rules for reasons similar to those used by Nessel in her case against Trump.

The president may declare a national energy emergency under the National Emergencies Act and grant himself unilateral authority. Nessel argues in the lawsuit that the President's declaration fails to prove that an energy emergency exists. Whitmer's 2019 emergency rules to ban vapes suffered from the same problem.

State departments in Michigan can issue emergency rules if they are needed to preserve "public health, safety, or welfare." Whitmer's emergency declaration cited no evidence that the public health was at risk. Nessel hailed these emergency rules as “exactly the bold measures we must take.”

A few statistics about national trends in vaping rates among teenagers were included in the declaration. The only data about Michigan were surveys of high schoolers from fewer than half the state's counties. The results suggested that more high schoolers were vaping. There's no reason to doubt these trends, but they say nothing about the danger to public health from flavored vapes.

To justify using unilateral emergency authority, the Whitmer administration should have had to prove that people were being harmed by flavored vaping products and that this harm endangered the broader public welfare. It did neither, and Nessel endorsed the effort.

Nessel’s lawsuit also criticizes Trump’s emergency declaration for being “internally inconsistent.” It claims the policies the president is pushing do not address the supposed energy shortage — the rational for the declaration. Whitmer’s vaping ban was similarly inconsistent.

Officials titled the emergency rules “Protection of Youth from Nicotine Product Addiction.” This was misleading, because state law already prohibited the sale of nicotine products to anyone under 18. This created a sort of bait and switch, because the ban applied to everyone, not just young people.

Nessel’s lawsuit also claims Trump’s emergency actions exceed his statutory authority. A similar charge could be made against Whitmer’s vaping ban. No state law permits the health department to regulate the sale of tobacco or vapes or other nicotine products.

That is why the health department reached for emergency rules to ban flavored vaping products. But if the department could give itself the power to regulate something simply by declaring a public health emergency, there would be no limits to what it could control.

Michigan courts stood firm against Whitmer’s emergency vape ban in 2019. Nessel defended the governor’s actions all the way. After the court losses, the health department proposed permanent rules to ban flavored vapes, but it abandoned these a day before they were to be reviewed by a legislative committee. To date, the department has accomplished almost nothing to address the alleged public health crisis it identified six years ago.

Congress and state legislatures need to reform their emergency power laws, which are easily and increasingly abused by the executive branch. Until then, courts will play a vital role protecting citizens against abuse of executive overreach. Politicians from both parties push their powers past their proper limits. Attorneys general and judges should push back against every use of emergency authority. An inch given today to a trusted ally becomes a mile taken later by someone less trustworthy.

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