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COMMENTARY | The state previews how far Republican judges will go to obstruct Democrats in office.
Last week, in a 4–3 party-line vote, Republican judges on the Michigan Supreme Court invalidated a law that had empowered a historically popular Democratic chief executive to take emergency actions to combat Covid-19. The basis for the decision was an antiquated doctrine that conservatives on the United States Supreme Court have signaled they want to revive.
That brazen ruling in Michigan previews where the U.S. Supreme Court might take the country, especially with the breathing room that a 6–3 conservative supermajority would create. Although the news media have mostly focused on what a Justice Amy Coney Barrett would mean for abortion and gun rights, her confirmation may pose a more fundamental threat to good governance. The United States Supreme Court, like the Michigan Supreme Court, may become an even more stridently partisan instrument than it already is, one that by design will frustrate Democratic efforts to govern.
Like other governors around the country, Michigan’s Gretchen Whitmer declared a state of emergency in March and enacted aggressive emergency measures to fight Covid-19. Those efforts found support in two separate laws, one of which—the Emergency Powers of Governor Act—was adopted in 1945.
By mid-June, statewide cases had dropped to fewer than 200 a day from a peak of more than 1,600. A study out of Imperial College London and the University of Oxford suggested that Whitmer’s efforts saved as many as 74,000 lives. (Full disclosure: I served as special counsel to Whitmer on her Covid-19 response and aided in drafting many of her executive orders.)
As in other states, lawsuits challenging the governor’s executive orders came fast. Republican judges proved receptive, even when the legal arguments were appallingly thin. Three months into the pandemic, for example, a federal judge in Grand Rapids declared that the governor’s statewide closure of gyms was so irrational as to be unconstitutional: “At this point, the bare assertion that gyms are dangerous is not enough to demonstrate a ‘real or substantial’ connection to public health, nor is it a set of facts establishing rational basis to justify their continued closure.” The judge’s decision was so far out of line that it earned him a swift, unanimous rebuke from an appeals court.
Another example was a 13-page concurring opinion from a Republican judge excoriating Whitmer for her Covid-19 emergency orders—in a case that had nothing to do with the pandemic (at issue was an emergency rule prohibiting the sale of flavored nicotine pods for e-cigarettes). “Totalitarianism,” the judge intoned, “has no place in America.”
The judge’s rhetoric was so extreme, it bordered on parody: “Will we live under the thumb of autocrats in the hope that they will keep us safe? The world of our children and grandchildren hangs in the balance.” But the paranoid suspicion of government should be recognizable to anyone familiar with the conservative legal movement. As Chief Justice John Roberts has warned darkly, “The danger posed by the growing power of the administrative state cannot be dismissed.”
The Michigan Supreme Court’s decision last week marks the apotheosis of this “totalitarian” line of thinking. Criticizing the Emergency Powers of Governor Act for giving Whitmer “concentrated and standardless power to regulate the lives of our people,” the Republican majority held that the law was unconstitutional because it violated the so-called nondelegation doctrine.
The doctrine ostensibly prohibits legislatures from passing laws that delegate too much power, or power of the wrong kind, to the executive branch. But the doctrine has never done meaningful work in U.S. constitutional law. It has not been used to strike down an act of Congress since 1935. It has never been used to strike down a Michigan state law, much less an emergency law that has been on the books for three-quarters of a century.
The Michigan Supreme Court, however, was following the lead of the U.S. Supreme Court. In an opinion last year, Justice Neil Gorsuch wrote a dissent calling for the revival of the nondelegation doctrine. Gorsuch premised his argument on the originalist claim that the Framers believed “that it would frustrate ‘the system of government ordained by the Constitution’ if Congress could merely announce vague aspirations and then assign others the responsibility of adopting legislation to realize its goals.”
The historical claim is bunk, as Julian Davis Mortenson and I have argued at length. But its purpose is not to persuade. Its purpose, instead, is to put a patina of scholarly respectability on an agenda to destabilize the modern administrative state.
Reading the tea leaves, four other justices may be poised to join Gorsuch in his crusade. Barrett could be the sixth. Her additional vote means that it won’t matter if one of the justices gets weak knees, much as Roberts was accused of when he joined with the liberal justices to uphold the Affordable Care Act back in 2012. There’s a bigger margin for extremism.
Delegations of power pervade modern American governance, at both the federal and state levels. The reason is simple: Legislatures aren’t equipped to resolve every question for themselves. Nor are they nimble enough to confront every new challenge as it arises. Sometimes, they need to draw on the executive branch’s expertise and dispatch.
Emergencies are a prime example. Points of order and subcommittee referrals are not the stuff of a competent emergency response. That’s why the Michigan legislature in 1945 passed the Emergency Powers of Governor Act, vesting the governor with wide-ranging, temporary powers in the event of a “public emergency within the state.” Laws resembling that act are on the books in every state in the country. There’s nothing unconstitutional about them.
It’s also wrong to say that the Emergency Powers of Governor Act lacks any standards to guide the governor’s choices. It empowers the governor to adopt only those “reasonable” orders that she “considers necessary to protect life and property.”
If Covid-19 were not so lethal, Whitmer would thus have no authority to act. Similarly, if the coronavirus were a blood-borne pathogen, orders limiting gatherings or requiring masks would be unreasonable and thus beyond her authority. The scope of the governor’s orders is a function of the severity and nature of the threat, not a mark of the unconstitutionality of the law empowering her to cope with it.
Nonetheless, a Republican-controlled court handcuffed a Democratic governor as she moved to address a global pandemic that, to date, has killed more than 7,100 Michiganders. The court’s opinion is almost devoid of citations of Michigan case law, as the law professor Rick Hills has noted. Instead, the court lovingly quotes Gorsuch.
The goal here is pretty obvious: The conservative legal movement has not been subtle. In 2017, then–White House Counsel Don McGahn said in a speech to the Federalist Society that “the greatest threat to the rule of law in our modern society is the ever-expanding regulatory state, and the most effective bulwark against that threat is a strong judiciary.” Shortly after, President Trump nominated Gorsuch for a seat on the U.S. Supreme Court.
A revived nondelegation doctrine would give conservatives a useful tool to beat back laws adopted under a Biden administration. Judges have no principled way to identify statutes that delegate too much power or power of the wrong kind, a point made most eloquently by Justice Antonin Scalia. But if Michigan is any guide, Republican judges will be especially eager to find that the line has been crossed once Democrats are in charge.
It’s all so transparently partisan, yet conservative judges have the gall to claim to be speaking for the people. (“The separation of powers is fundamental to democracy,” as the Michigan Supreme Court piously said.)
Torching a democratically enacted law doesn’t respect democracy. In Michigan, doing so shifted power to a legislature under Republican control thanks to extreme gerrymandering. In 2018, Democratic legislative candidates in Michigan won hundreds of thousands more votes than their Republican opponents. Yet Republicans have a 58–52 majority in the House and a 22–16 majority in the Senate.
The nondelegation doctrine isn’t about democracy. It’s about the power to restrain government. And it will be wielded as opportunistically against a President Biden as it has been wielded against Whitmer.
As a result of last week’s decision, Michigan became the only state in the nation that is not operating under some type of state of emergency.
For now, that doesn’t mean the end of all Covid-19 protections. The state’s public-health director has the independent power, not at issue in the Supreme Court’s decision, to take emergency actions to control epidemics. On Monday, the director issued a series of orders incorporating the governor’s prior restrictions, including her mask mandate and limits on gatherings. These orders, too, will surely be challenged.
The larger lesson is that Republican judges are serious about using their power to obstruct Democrats in office, even when doing so is legally indefensible and blatantly undemocratic—indeed, even when it jeopardizes human life. There’s no reason to expect a conservative supermajority on the United States Supreme Court to act with more restraint. The Republican-appointed justices have the votes to impede pretty much anything Democrats aim to do, whether that’s mitigating climate change, expanding access to health care, or extending statehood to Puerto Rico or Washington, D.C.
We may all be Michigan soon.
Nicholas Bagley is a law professor at the University of Michigan.