Governor Whitmer's New Lockdown Orders Are Unconstitutional

In October, I wrote about the decision of the Michigan Supreme Court striking down Governor Gretchen Whitmer's coronavirus lockdown orders as unconstitutional.  Now the Governor has issued new lockdown orders that can be recognized as unconstitutional if one applies the same reasoning as the Court employed in the previous case.

In that earlier case, the Court declared that the Emergency Powers of the Governor Act (EPGA) of 1945 was an unconstitutional violation of the Lockean nondelegation doctrine--under the principle of the separation of powers, the legislature cannot delegate its lawmaking power to any other branch of the government, because that would create an arbitrary, absolute power to violate the rights of the people unconstrained by the rule of law.

In writing the opinion for the majority on the Court, Justice Markman warned:

"almost certainly, 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 inconveniences 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).

Although the Governor's new lockdown orders are somewhat less severe than those issued last spring, they still display "concentrated and standardless power to regulate the lives of our people."  

Under this order, for the next three weeks, the following kinds of gatherings are prohibited: high schools (in-person learning), colleges and universities (in-person learning), workplaces (when work can be done from home), restaurants and bars (indoor dining), organized sports (except professional sports), theaters, stadiums, arenas, bowling centers, ice skating rinks, indoor water parks, bingo halls, casinos, arcades, and group fitness classes.  Indoor gatherings are prohibited at non-residential venues, which presumably would include indoor worship services.  Indoor gatherings at residential venues must not be more than 10 persons from no more than 2 households. 

Violation of this order is a misdemeanor punishable by imprisonment for up to 6 months, or a fine of not more than $200, or both.

So how does the Governor evade the Supreme Court ruling against her?  She thinks she has found a loophole in the opinion written by Judge Viviano, who said that most of what she wanted to do in her lockdown order could have been done under the authority of a public health law passed by the legislature in 1919 (in response to the flu pandemic of 1918).  One section of that act addresses public meetings:

"In case of an epidemic of any infectious or dangerous communicable disease within this state or any community thereof, the state health commissioner may, if he deem it necessary to protect the public health, forbid the holding of public meetings of any nature whatsoever except church services which may be restricted as to number in attendance at one time, in said community, or may limit the right to hold such meetings in his discretion.  Such action shall not be taken, however, without the consent and approval of the advisory council of health. . . . Such order shall be signed by the health commissioner and if applicable to the entire state be countersigned by the governor."

The State Health Commissioner is also "authorized to establish a system of quarantine for the state of Michigan and the governor shall have authority to order the state militia to any section of the state on request of the state board of health to enforce such quarantine."

Notice that the legislature has not provided any clear definite standard limiting administrative power here.  The only suggestion of a standard is that the commissioner can act at his own discretion "if he deem it necessary to protect public health."  

This language is just as vague as the language of the EPGA, which the Supreme Court declared unconstitutional.  The EPGA says: "After making the proclamation or declaration, 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."  The Court declared--in Justice Markman's opinion--that this language did not provide a proper standard: "the EPGA, in setting forth a 'necessary' standard, just as in setting forth a 'reasonable' standard, neither supplies genuine guidance to the Governor as to how to exercise the authority delegated to her by the EPGA nor constrains her actions in any meaningful manner" (33).

If the EPGA is an unconstitutional delegation of legislative power to the Governor, then, for similar reasons, the 1919 health law is an unconstitutional delegation of legislative power to the State Health Commissioner.  I will be interested to see if the Michigan Supreme Court agrees with this.

In the meantime, there is talk among Michigan legislators today about impeaching the Governor, which is the ultimate check on the Governor's abuse of power.

Actually, though, the ultimate check on the Governor's power is the refusal of the people to obey her order.