In April, I wrote a series of posts (here, here, and here) arguing that Michigan Governor Gretchen Whitmer's lockdown orders were unconstitutional, because she was acting as a tyrant in exercising arbitrary absolute power in suspending the liberty of Michigan citizens. Last week, the Michigan Supreme Court reached the same conclusion, and in doing so, the Court joined a judicial movement for reviving the Lockean doctrine of nondelegation--that the lawmaking power of the legislature cannot rightly be delegated to the executive, because the combination of lawmaking and executive powers in one person is tyranny. The Court quoted Montesquieu: "When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty." The Wall Street Journal editorial on this decision began by declaring: "Michigan's one-woman rule is no more."
Two weeks ago, I wrote about the federal court decision striking down Governor Tom Wolf's lockdown in Pennsylvania as unconstitutional. So we are seeing a growing judicial scrutiny of the constitutionality of the COVID-19 lockdowns based on rule by executive decrees that violate the principles of separation of powers and the nondelegation doctrine.
To understand what is going on here, I will move through three steps by examining the nondelegation doctrine in the Michigan Constitution, in the U.S. Constitution, and in John Locke's Second Treatise.
NONDELEGATION IN THE MICHIGAN CONSTITUTION
On March 10, in response to the COVID-19 pandemic, Governor Whitmer declared a "state of emergency" under two Michigan laws--the Emergency Powers of the Governor Act of 1945 (the EPGA) and the Emergency Management Act of 1976 (the EMA). The EPGA says that the Governor may proclaim a state of emergency when there is a public emergency that threatens "public safety." "After making the proclamation or declaration," the law states, "the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control." These orders, rules, and regulations remain in effect until the governor declares that the emergency no longer exists.
The EMA allows the governor to declare a "state of disaster" or "state of emergency." But after 28 days, the governor must declare that the state of disaster or emergency is terminated unless a resolution of both houses of the legislature has approved the governor's request for an extension of the state of disaster or emergency for a specific number of days.
On April 1, Governor Whitmer requested that the Legislature extend her declarations of disaster and emergency for 70 days. The Legislature responded by giving her an extension to April 30. On April 30, she issued an executive order terminating her declaration of disaster and emergency under the EMA. But she then immediately declared that there was still a state of disaster and emergency under the EPGA, which extended her lockdown of the state indefinitely.
Some Michigan healthcare providers filed a lawsuit in a federal district court charging that Governor Whitmer did not have the legal authority to prohibit them from performing "nonessential" procedures--in particular, a patient had been unable to undergo a knee-replacement surgery that had been scheduled for the end of March. The federal district court certified two questions for the Michigan Supreme Court to answer. Did the EPGA and the EMA give Governor Whitmer the authority to continue her lockdown orders? Did the EPGA or the EMA violate the clause in the Michigan Constitution requiring the separation of powers and prohibiting the legislature from delegating its lawmaking powers to the governor?
In answering the first question, the seven Supreme Court judges unanimously decided that under the EMA Whitmer did not have the legal authority to extend her emergency declaration beyond April 30, because the Legislature had refused to extend her declaration.
In answering the second question, the majority of the court--four of the seven--ruled that the EPGA was unconstitutional because it violated the separation of powers in the Michigan Constitution of 1963, particularly Article 3, section 2: "The powers of government are divided into three branches: legislative, executive, and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution."
Assuming emergency powers to protect the public safety or public health belongs to the "police power" of the Legislature. But the EPGA allows the governor to exercise that legislative police power free from any constraints by the Legislature, which means that the governor can combine both executive and legislative powers, and this is the arbitrary, absolute rule of one person over all the citizens. This violation of the separation of powers means the suspension of the constitutional liberties of the people.
Justice Stephen Markman wrote in his majority opinion that Governor Whitmer's rule by executive decrees in imposing the COVID-19 lockdown on Michigan dramatically illustrated the danger in allowing a governor to set aside the constitutional system of separation of powers with checks and balances:
". . . no individual in the history of this state has ever been vested with as much concentrated and standardless power to regulate the lives of our people, free of the inconvenience of having to act in accord with other accountable branches of government and free of any need to subject her decisions to the ordinary interplay of our system of separated powers and checks and balances, with even the ending date of this exercise of power reposing exclusively in her own judgment and discretion" (47).
Justice Bridget McCormack wrote for the three dissenters who argued that under the precedents set by the Michigan courts and the U.S. Supreme Court, the EPGA could not be struck down as a violation of the nondelegation doctrine. McCormack pointed out that the U.S. Supreme Court had invalidated a statute under the nondelegation doctrine in only two cases, both of them in 1935, Since then, the U.S. Supreme Court has repeatedly upheld very broad congressional delegations of legislative powers to the executive branch and administrative agencies. The only requirement has been that the legislature must provide an "intelligible principle" to guide the executive decision maker, and this "intelligible principle" standard has been easily satisfied.
"Until today," McCormack observed, "a delegation was invalid only when there were no standards" (7). And "the bar for what standards qualify as constitutional is low." McCormack wrote:
"The delegation in the EPGA plainly has standards that surmount that bar. For the Governor to invoke the EPGA plainly has standards that surmount that bar. For the Governor to invoke the EPGA, her actions must be 'reasonable' and 'necessary,' they must 'protect life and property' or 'bring the emergency situation . . . under control,' and they may be taken only at a time of 'public emergency' or 'reasonable apprehension of immediate danger' when 'public safety is imperiled.' . . . Those are standards. Reasonable people might disagree about their rigor, but this Court and the United States Supreme Court have consistently held similar standards constitutional."
". . . The particular standards in the EPGA are as reasonably precise as the statute's subject matter permits. Given the unpredictability and range of emergencies the Legislature identified in the statute, it is difficult to see how it could be more specific" (7).
In response, Justice Markman argues that the EPGA's delegation of legislative powers to the governor is too expansive, too indefinite in its duration, and too inadequate in its standards to sustain this delegation of powers to Governor Whitman. It's too expansive, because it allows the Governor to suspend all of the constitutional liberties of the people in exercising arbitrary, absolute power over the entire social and economic life of Michigan. It's too indefinite in its duration, because the law sets no time limits on the Governor's emergency powers: she is free to exercise those powers for as long as she wants. It's too inadequate in its standards, because the standards set by the words "reasonable" and "necessary" are so vague that they supply no genuine guidance to the Governor in the exercise of her authority and no constraints on her actions.
". . . A person driving on the road instead of staying inside at home, for example, may fairly be understood as posing a threat to 'life' and 'property' because there is perpetual risk that he or she will be involved in an automobile accident. Thus, the Governor under the EPGA may find an order prohibiting a person from driving is warranted merely on the basis of this rationale. The contagions, accidents, misfortunes, risks, and acts of God, ordinarily and inevitably associated with the human condition and with our everyday social experiences, are simply too various for this standard to supply any meaningful limitation upon the exercise of the delegated power" (33).
Both sides in this debate on the Michigan Supreme Court recognize that a similar debate is taking place on the U.S. Supreme Court over the constitutional status and meaning of the nondelegation doctrine. One side wants to stay with the low standard for nondelegation that has been in force for 85 years--a standard so low as to be toothless. The other side wants to enforce a higher standard--like that stated in 1935--that would seriously constrain legislative delegations of lawmaking power.
This constitutional debate is ultimately a philosophical debate over whether the separation of powers with the rule of law can be reconciled with the need for lawless executive prerogative in times of emergency or in response to other contingencies that cannot be governed by general laws prescribed by the legislature.
NONDELEGATION IN THE U.S. CONSTITUTION
Unlike the Michigan Constitution, the U.S. Constitution does not have a section explicitly stating that there must be a separation of powers between the three branches of government, so that officers in one branch cannot exercise the powers of those in the other two branches. The Michigan Constitution follows the example set by the Massachusetts Constitution of 1780, which was drafted by John Adams. In Article XXX of the Declaration of Rights--the first part of the Massachusetts Constitution--it is declared:
"In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; The executive shall never exercise the legislative and judicial powers, or either of them; The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men."
Notice that Adams states the "end" or purpose of such a strict separation of powers--to ensure that there is a government of laws and not of men. If any one person or group of people could exercise the lawmaking, executive, and judicial powers of government, they would have unlimited power to rule over the country as they pleased; and such a power would inevitably be abused for tyrannical purposes, because human beings are naturally inclined to use unlimited power to dominate over their fellow human beings. A republic is the best form of government, John Adams argued in Thoughts on Government, because it is "an empire of laws, and not of men," which is secured by the popular control of government, but also by the separation of powers. This secures the impartial rule of law because no one person or group of people has the power to make, execute, and judge the law so that it serves their selfish interests rather than the common good.
When Governor Whitmer imposed her COVID-19 lockdown orders on Michigan, she legislated her own orders, executed those orders, and judged the application of those order to particular cases. The Michigan Supreme Court quoted James Madison in Federalist number 47: "The accumulation of all powers, legislative, executive, and judiciary, in the same branch, whether of one, a few, or many . . . may justly be pronounced the very definition of tyranny." If so, then Governor Whitman was acting as a tyrant.
Still, however, we might wonder whether the U.S. Constitution really does enforce a strict separation of powers, since it does not have the explicit language of the Michigan Constitution. In 1789, James Madison proposed this amendment to the Constitution to be included in the Bill of Rights:
"The powers delegated by this Constitution are appropriated to the departments to which they are respectively distributed: so that the Legislative Department shall never exercise the powers vested in the Executive or Judicial, nor the Executive exercise the powers vested in the Legislative or Judicial, nor the Judicial exercise the powers vested in the Legislative or Executive Departments."
When Madison introduced this amendment in the First Congress, congressman Roger Sherman objected, saying that the amendment was "altogether unnecessary, inasmuch as the Constitution assigned the business of each branch of the Government to a separate department." Madison agreed, he "supposed the people would be gratified with the amendment, as it was admitted that the powers ought to be separate and distinct; it might also tend to an explanation of some doubts that might arise respecting the construction of the Constitution." The House of Representatives approved this amendment, but the Senate struck it down. The majority of the Congress might have agreed that while the amendment was unnecessary, it would do no harm. The majority in the Senate might have thought that if it was unnecessary, it should not be added to the Constitution.
This amendment was unnecessary insofar as the Constitution's "vesting" clauses imply a separation of powers and a nondelegation doctrine. Article 1 begins: "All legislative Powers herein granted shall be vested in a Congress of the United States." Article 2 begins: "The executive Power shall be vested in a President of the United States of America." Article 3 begins: "The judicial Power of the United States shall be vested in one supreme Court." By implication, no one in one of these branches can exercise the powers "vested" in the other two; and the Congress cannot delegate to the other branches the legislative powers "vested" in the Congress. Notice that this does allow for some constitutional mixing of powers: for example, the President is "vested" with a power to veto legislation of the Congress, which involves the President in the legislative process of lawmaking.
Before the 1930s, the congressional grants of authority to the executive branch were so limited that they could be easily upheld by the Supreme Court as conforming to the nondelegation doctrine. But then President Franklin Roosevelt's New Deal programs expanding the role of the federal government in the American economy seemed to require broad congressional delegations of power that provoked the Court into striking down some statutes as violating the separation of powers. The Court did this twice in 1935, striking down provisions of the 1933 National Industrial Recovery Act, which was a crucial element of Roosevelt's New Deal policies.
In A. L. A. Schechter Poultry Corp. v. United States, the court reviewed a congressional statute that gave the President the power to approve "codes of fair competition" for slaughterhouses and other industries. But Congress provided no guidelines for what counted as "fair competition." The President adopted an elaborate code of fair competition that had been written by some New York poultry butchers, and some of their competitors charged that this code was written to serve the self-interest of those who wrote it.
One of the rules in this code made it a federal crime for butchers to allow customers to select the chickens they wanted to buy. The Schechter Poultry Company was a group of kosher butchers who found it hard to follow these rules. They were convicted of selling an "unfit" chicken and other charges. When this case was brought before the Supreme Court, the statute allowing the President to do this was struck down as an unconstitutional delegation of law-making power. Writing for a unanimous court, Justice Benjamin Cardozo complained that "anything that Congress may do within the limits of the commerce clause for the betterment of business could be done by the President . . . by calling it a code. This is delegation running riot."
In the second case in 1935--Panama Refining Co. v. Ryan--the Court struck down a statute that authorized the President to prohibit the transportation of petroleum produced or withdrawn from storage exceeding the quotas set for each state. The Court decided that since Congress "has declared no policy, has established no standard, has laid down no rule," this was an unconstitutional grant of legislative power to the President, so that he could act as a lawmaker.
After those two cases, the Court never again declared any statute in violation of the nondelegation doctrine, even as the Congress has authorized an administrative state, in which administrative agencies in the executive branch have combined lawmaking, executive, and judicial powers: administrators make their own rules, enforce those rules, and adjudicate cases under those rules.
We must wonder whether administrative law is unlawful (as suggested in the title of a book by Philip Hamburger). If administrators in the executive branch of government can exercise binding legislative and judicial powers that are outside and above the legislative power of the Congress and the judicial power of the courts, is this an exercise of absolute power? Didn't Anglo-American constitutional law originate to defeat such claims of absolute power by monarchs? If so, could it be argued that the administrative state is not just unconstitutional but anti-constitutional?
Some American conservative judges (those affiliated with The Federalist Society) have answered yes to those questions, and they have proposed constitutional limits on the administrative state grounded in a revival of the nondelegation doctrine as it was interpreted in the Schechter and Panama Refining decisions. Last year, in the Supreme Court case of Gundy v. U.S., five of the Supreme Court justices--Roberts, Thomas, Alito, Gorsuch, and Cavanaugh--took this position. If Trump's nominee--Amy Coney Barrett--is confirmed, she could become the sixth judge for this group. But even without her, the five on the Court now would be a majority for any future case on nondelegation.
The four Michigan Supreme Court justices who struck down the Emergency Powers of the Governor Act cited Gorsuch's dissenting opinion in the Gundy case as evidence that the U. S. Supreme Court was moving towards reviving the nondelegation doctrine.
The issue in the Gundy case was whether the Sex Offender Registration and Notification Act (SORNA) violated the nondelegation doctrine. SORNA gave the U. S. Attorney General the authority to "specify the applicability" of the mandatory registration requirements for sex offenders convicted before the enactment of SORNA. The law provided no clear policy to guide the Attorney General in the exercise of his discretionary authority. Nevertheless, the majority on the Court upheld the constitutionality of the law.
Because of the vacancy created by Justice Scalia's death, there were only 8 justices on the Court, and Justice Cavanaugh had been confirmed too late to participate in deciding this case. So four judges (Kagan, Ginsburg, Breyer, and Alito) constituted a majority for upholding SORNA as constitutional, although Alito indicated that he would be willing in a different case to enforce a higher standard for nondelegation. Gorsuch wrote a dissenting opinion, in which Roberts and Thomas joined. Kavanaugh said publicly that if he could have participated in this decision, he would have concurred with Gorsuch's opinion.
Gorsuch's opinion summarizes all of the reasoning developed by originalist legal scholars for restoring the nondelegation doctrine as a serious limit on the Congress's authority to delegate its legislative powers to the President and to administrators in the executive branch. "If the Congress could pass off its legislative power to the executive branch," Gorsuch observes, "legislation would risk becoming nothing more than the will of the current President" (8). This suggests that although he was appointed by Donald Trump, Gorsuch would not agree with Trump's rule by executive decrees and Trump's claim that the Constitution "allows me to do whatever I want to do."
Similarly, Gorsuch denies the constitutionality of the Congress delegating its lawmaking powers to the Attorney General in SORNA. And in doing this, he echoes the language of Cardozo's Schecter Poultry opinion, as in the last two sentences of Gorsuch's opinion: "while Congress can enlist considerable assistance from the executive branch in filling up details and finding facts, it may never hand off to the nation's chief prosecutor the power to write his own criminal code. That 'is delegation running riot'" (33).
Gorsuch recognized that the first statement of the nondelegation doctrine was in Locke's Second Treatise, particularly in section 141, which he quoted:
"The legislative cannot transfer the power of making laws to any other hands; for it being but a delegated power from the people, they who have it cannot pass it over to others. The people alone can appoint the form of the commonwealth, which is by constituting the legislative, and appointing in whose hands that shall be. And when the people have said we will submit to rules, and be governed by laws made by such men, and in such forms, nobody else can say other men shall make laws for them; nor can the people be bound by any laws but such as are enacted by those whom they have chosen and authorized to make laws for them."
We must wonder, however, whether this strict separation of powers can be enforced in circumstances where we might need to have chief executives and administrators exercise broad discretionary powers. After all, Locke thought that any effective executive must exercise "prerogative," which is the power "to act according to discretion, for the public good, without the prescription of the Law, and sometimes even against it" (ST, sec. 160). Is it necessary to allow this, particularly in times of emergency--such as war or a pandemic? This has been the claim made by governors like Whitmer who have asserted the emergency power to impose lockdown orders to protect the public health. I have taken up some of these issues in Political Questions, 250-262, and in a previous post.