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 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. The Michigan Supreme Court’s decision last week marks the apotheosis of this “totalitarian” line of thinking. A study out of Imperial College London and the University of Oxford suggested that Whitmer’s efforts saved as many as 74,000 lives. Whitmer locked down the state in March, shutting down barbershops, salons and other businesses deemed non-essential, prompting protests across the state. You may need to download version 2.0 now from the Chrome Web Store. Its purpose, instead, is to put a patina of scholarly respectability on an agenda to destabilize the modern administrative state. That was the last date when the legislature allowed the governor to declare an emergency. The state previews how far Republican judges will go to obstruct Democrats in office. A revived nondelegation doctrine would give conservatives a useful tool to beat back laws adopted under a Biden administration. In Michigan, doing so shifted power to a legislature under Republican control thanks to extreme gerrymandering. Submit a letter to the editor or write to firstname.lastname@example.org. The court needed a quorum of two to operate and members were appointed to seven-year terms by the governor with the consent of the senate. 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. In an opinion last year, Justice Neil Gorsuch wrote a dissent calling for the revival of the nondelegation doctrine. Emergencies are a prime example. (Full disclosure: I served as special counsel to Whitmer on her COVID-19 response and aided in drafting many of her executive orders. The legislature did not extend the declaration, yet the governor continued to restrict the citizens without any representative voice. Muslim Refugees Decline Work, Say It's Against Their Religion To "Perform Labor" For Americans, BREAKING: Obama Now Considering Martial Law Because Of Mass Riots. But the doctrine has never done meaningful work in U.S. constitutional law. In 2018, Democratic legislative candidates in Michigan won hundreds of thousands more votes than their Republican opponents. TheAtlantic.com Copyright (c) 2020 by The Atlantic Monthly Group. As in other states, lawsuits challenging the governor’s executive orders came fast. https://conservativedailypost.com/wp-content/uploads/2020/10/whitmercnnwhine.mp4, Voters Scramble To “Change Vote” After Biden Scandals Exposed, “Dark Winter” Is Code Word: Biden’s Careful Instruction Contains Sinister Message. The historical claim is bunk, as Julian Davis Mortenson and I have argued at length. Trump called COVID a hoax, saying he was talking about "Democratic and media concerns about the virus.” pic.twitter.com/jidd1cCf3m, — Alex Salvi (@alexsalvinews) October 4, 2020. Elizabeth Goitein: Trump’s reasonable—and yet still worrisome—emergency declaration, The Michigan Supreme Court, however, was following the lead of the U.S. Supreme Court. © 2017 Conservative Daily Post. The court issued a split decision Friday, ruling that Whitmer’s extension of emergency declarations used to mandate lockdown restrictions were unconstitutional, according to the Detroit Free Press. Delegations of power pervade modern American governance, at both the federal and state levels. The Michigan State Supreme Court ruled on Monday that an Oct. 2 decision striking down Democratic Michigan Gov. Republican-nominated justices successfully kept their 5-2 majority on the Michigan Supreme Court in Tuesday's election as the two incumbents up for re-election fended off challengers. MICHIGAN – […] In the 4-3 ruling, the court determined the governor did not have the authority under state law to issue any additional emergency declarations pertaining to the pandemic after April 30. • Michigan Attorney General Dana Nessel said Sunday she will not continue to enforce Democratic Michigan Gov. 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. 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. 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. Conservative Treehouse explained the Supreme Court decision: The supreme court in Michigan has ruled that Governor Gretchen Whitmer exceeded her constitutional authority under state law in the arbitrary enforcement of her unilateral decrees to mitigate the COVID-19 virus. 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.”. 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). If COVID-19 were not so lethal, Whitmer would thus have no authority to act. As Chief Justice John Roberts has warned darkly, “The danger posed by the growing power of the administrative state cannot be dismissed.”. Those efforts found support in two separate laws, one of which—the Emergency Powers of Governor Act—was adopted in 1945. It had three members and each also oversaw one of the three judicial circuits, located in Detroit, Ann Arbor and Kalamazoo. With this decision, Michigan will become the sole outlier at a time when the Upper Peninsula is experiencing rates of COVID infection not seen in our state since April.”, Whitmer said the ruling “does not take effect for at least 21 days” and that her “emergency declaration and orders retain the force of law.”. Another way to prevent getting this page in the future is to use Privacy Pass. (Source: Alex Salvi News Twitter Screenshot). 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. So, if the Legislature does nothing, as it did here, the governor is obligated to terminate the state of emergency or state of disaster after 28 days,” said the majority opinion, written by Judge Stephen Markman.
[pdf here] As the court wrote in the opinion rebuking the governor: “The people of this state have been denied a voice and a seat at the table in decisions that have impacted every facet of their lives and their futures over the past eight months. 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. It’s all so transparently partisan, yet conservative judges have the gall to claim to be speaking for the people. But its purpose is not to persuade. •
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. Similarly, if the coronavirus were a blood-borne pathogen, orders limiting gatherings or requiring masks would be unreasonable and thus beyond her authority. 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. 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. submit to autocratic rule were threatened with criminal prosecution. There’s a bigger margin for extremism. Sometimes, they need to draw on the executive branch’s expertise and dispatch.
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. Gretchen Whitmer (D) has been using to keep the state locked down since April. […] “Put simply, and our criticism is not of the Governor in this regard but of the statute in dispute — 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 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,” the majority wrote. All rights reserved. Instead, the court lovingly quotes Gorsuch. The court issued a split decision Friday, ruling that Whitmer’s extension of emergency declarations used to mandate lockdown restrictions were unconstitutional, according to the Detroit Free Press.
“It is in no way to diminish the present pandemic for this Court to assert, as we now do, that with respect to the most fundamental propositions of our system of constitutional governance, with respect to the public institutions that have most sustained our freedoms over the past 183 years, there must now be some rudimentary return to normalcy.” (more), CNN’s Jake Tapper fact-checks Michigan Gov. Your IP: 126.96.36.199 In Michigan, Governor Gretchen Whitmer outdid all other democrats with her arbitrary and totalitarian rule of the state, using COVID as the excuse to erase the individual liberties provided in the Constitution of the United States. Whitmer has repeatedly extended a “state of emergency” for the past several months and pointed to a World War II-era law to do so, most recently lengthening it … These "orders" were unlawful.
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