MIDLAND, Mich. — In an amicus brief filed today, the Mackinac Center for Public Policy argues that the Michigan Supreme Court should protect its reputation and decline the attorney general’s unprecedented request to undo the court’s October 2020 decision concerning the governor’s use of emergency powers. Attorney General Dana Nessel is seeking a bypass motion to avoid a Court of Appeals ruling in a case related to a $5,000 fine given to a restaurant that reopened during Gov. Gretchen Whitmer’s second lockdown.
The Mackinac Center, in conjunction with Miller Johnson law firm, represented the plaintiffs in a case that led to the Michigan Supreme Court’s October 2020 decision holding that the Emergency Powers of Governor Act was unconstitutional. The law has since been repealed.
The attorney general’s office is nevertheless seeking to challenge the decades-old nondelegation doctrine, which was the foundation for the Supreme Court’s 2020 decision. The emergency bypass was requested after an Ostego County judge declared part of a health law allowing the Michigan Department of Health and Human Services to issue its own emergency orders to be unconstitutional under the same doctrine.
The attorney general’s request of the court to decide the case on an expedited timeline not only has no merit, but could also put the court’s reputation at risk. The EPGA ruling is one of the most important decisions issued by the court in decades. Unnecessarily expediting and potentially reversing a ruling simply because one member of the court changed would undermine the institution’s legitimacy and make it appear more of a political actor than a neutral, judicial body.
If a future case was brought through the normal appellate process concerning the nondelegation doctrine, the Michigan Supreme Court has the discretion to consider it. It shouldn’t do so in this case, where the normal process would be ignored and when there is no clear need for new consideration. It took months before Gov. Whitmer’s lockdown mandates were reviewed by the courts, and those were impacting the lives of 10 million people. COVID-19-related mandates of all kinds are on the decline, and the state department rescinded nearly all its orders over nine months ago. Further, the attorney general’s own brief contains many arguments why overturning the EPGA decision is not necessary.
“The attorney general’s office is seeking to undo a long-standing court doctrine in order to give unlimited and unchecked power to governors and the administrative state,” said Patrick J. Wright, vice president of legal affairs at the Mackinac Center and director of the Mackinac Center Legal Foundation. “There is no need to rush the normal legal process for an outlandish concern. Doing so may cause irreparable damage to the public perception of the court and its work.”
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