Outside Legal Counsel PLC

New Lawsuit Challenges Michigan Governor's Exercise of Emergency Powers

For Immediate Release | Apr 22, 2020

On behalf of the nonprofit advocacy group Michigan United for Liberty, Outside Legal Counsel PLC (together with associated counsel Matthew Gronda) has filed a new lawsuit challenging the actions of Michigan Governor Gretchen Whitmer and the two laws being utilized to issue nearly four dozen executive orders in response to the COVID-19 pandemic.

The suit, filed in the Michigan Court of Claims, challenges the constitutionality of the two Michigan laws, called the "Emergency Management Act" and the "Emergency Powers of the Governor Act of 1945." Both laws purport to convey the power to legislate (meaning the creation or amendments of statutes involving activities like elections, school closures, and more) to the Michigan Governor without passage and formal approval in the Michigan Legislature. Under the Michigan Constitution, "no person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided by the Constitution. Const 1963, Article III, Section 2. The Michigan Constitution does not provide the Governor emergency powers generally or has a pandemic exception to the separation of powers.

The suit explains that Governor Whitmer has "unilaterally made spending appropriations, suspended and/or modified legislatively enacted statutes, and seriously infringed upon basic individual liberties and property rights guaranteed by both the state and federal constitutions through a series of executive orders beginning on March 10, 2020."

On Monday (April 20, 2020) during a press conference, Governor Whitmer strongly suggested that she will continue to act unilaterally without the authorization of the Michigan Legislature.

The plaintiff in the case is Michigan United for Liberty, a non-profit coalition of individuals organized and formed shortly following Defendant's issuance of Executive Order Number 2020-21 (more commonly known as the first "Stay at Home Order") for the purpose of advocating against the unconstitutionality of that and like orders within the State of Michigan. Its membership comprised of nearly 8,000 people.

The suit does not seek any money or compensation, but rather a formal judicial declaration that the Governor's actions are unconstitutional in that: (1) Governor Whitmer is exceeding the legal authority granted to her under Article V of the Michigan Constitution of 1963; and (2) the Emergency Management Act, MCL 30.401 et seq, and Emergency Powers of Governor Act, MCL 10.31 et seq, are an impermissible and unconstitutional delegation of legislative authority by the Michigan Legislature.

This legal concept is known as the "nondelegation doctrine."

These constitutional provisions have led to the constitutional discipline that is described as the nondelegation doctrine. A simple statement of this doctrine is found in Field v. Clark, 143 U.S. 649, 692, 12 S.Ct. 495, 36 L.Ed. 294 (1892), in which the United States Supreme Court explained that "the integrity and maintenance of the system of government ordained by the Constitution" precludes Congress from delegating its legislative power to either the executive branch or the judicial branch. This concept has its roots in the separation of powers principle underlying our tripartite system of government.
"Our state and our country have overcome wars, emergencies, and huge challenges not because we had a single leader but three separate and deconsolidated centers of political powers," states Matthew Gronda, co-counsel for the plaintiff in the case.

"We have beaten every challenge without having to resort to an autocracy," echoes Philip L. Ellison, as co-counsel in the case.

A copy of the lawsuit can be downloaded here.