Introduction

In the landmark case of In re Certified Questions, the Michigan Supreme Court addressed pivotal issues concerning the extent of executive power during states of emergency. The plaintiffs, primarily healthcare providers and a patient affected by Governor Gretchen Whitmer's Executive Order (EO) No. 2020-17, challenged the legality of prohibiting nonessential medical procedures amidst the COVID-19 pandemic. This case scrutinized the constitutional boundaries of emergency powers vested in the executive branch, particularly under the Emergency Powers of the Governor Act (EPGA) and the Emergency Management Act (EMA) of Michigan.

Summary of the Judgment

On October 2, 2020, the Michigan Supreme Court delivered a unanimous decision, with Justices Markman, Zahra, and Clement collaborating fully, and Justices Viviano and Bernstein concurring in parts. The Court held two critical determinations:

1. Authority Under EMA: The Governor lacked the authority under the EMA to renew or issue executive orders related to the COVID-19 pandemic after April 30, 2020.
2. EPGA's Constitutionality: The EPGA was deemed unconstitutional as it unlawfully delegated legislative powers to the executive branch, violating the Separation of Powers as outlined in the Michigan Constitution.

Consequently, the executive orders issued under the EPGA, including the contested EO No. 2020-17, were invalidated, restoring the Legislature's exclusive authority to manage emergency declarations.

Analysis

Precedents Cited

The Court extensively referenced foundational cases addressing the Non-Delegation Doctrine and Separation of Powers. Key precedents include:

• PANAMA REFINING CO. v. RYAN (295 U.S. 495, 1935): Established that clear legislative standards are necessary to prevent unlawful delegation of legislative power to the executive.
• MISTRETTA v. UNITED STATES (488 U.S. 361, 1989): Affirmed that delegations are permissible if they include an "intelligible principle" guiding the executive's discretion.
• JACOBSON v. MASSACHUSETTS (197 U.S. 11, 1905): Recognized that public health measures can imperil public safety, justifying certain emergency actions.
• The Federalist Papers (No. 47 & No. 51 by James Madison): Emphasized the importance of separating governmental powers to prevent tyranny.

These precedents collectively reinforced the notion that while some delegation of power is constitutionally acceptable, it must be circumscribed by clear, reasonable standards to preserve the legislative authority and prevent executive overreach.

Legal Reasoning

The Court's legal reasoning was multifaceted:

• Interpretation of the EMA: The Court analyzed the statutory language of the EMA, particularly the clauses mandating the Governor to terminate emergency declarations after 28 days unless extended by the Legislature. The immediate subsequent executive orders EO No. 2020-66, EO No. 2020-67, and EO No. 2020-68 were found to be unconstitutional attempts to circumvent this provision, effectively invalidating the 28-day limitation.
• Analysis of the EPGA: The EPGA was scrutinized for its broad delegation of legislative powers to the executive branch without adequate standards. The terms "reasonable" and "necessary" were deemed too vague to provide meaningful constraints on the Governor's discretion, thus violating the Non-Delegation Doctrine and Michigan's Separation of Powers.
• Severability: The Court found that the unconstitutional delegation was not severable from the EPGA as a whole, rendering the entire statute unconstitutional.

The Court emphasized that allowing such broad and indefinite power would undermine the legislative authority and the constitutional balance between branches of government, potentially leading to unchecked executive power.

Impact

This judgment has profound implications:

• Limitation on Executive Power: Governors are now restricted from issuing or renewing emergency orders without explicit legislative authorization beyond the stipulated periods, ensuring a balance of power.
• Strengthening Legislative Authority: The Legislature retains primary authority over declaring and managing states of emergency, preventing executive overreach.
• Future Emergency Management: States must revise their emergency powers statutes to include clear, precise standards guiding executive discretion, aligning with the Non-Delegation Doctrine to withstand judicial scrutiny.
• Healthcare and Public Policy: Healthcare providers and other entities have a stronger foundation to challenge executive actions that overstep legal boundaries during emergencies.

Overall, the decision reinforces constitutional separations and necessitates legislative accountability in emergency governance.

Complex Concepts Simplified

Non-Delegation Doctrine

The Non-Delegation Doctrine is a constitutional principle that prohibits legislative bodies from delegating their lawmaking powers to other branches of government without clear standards or guidelines. Essentially, while some delegation is permissible, it must be bounded by specific, clear instructions to prevent the executive or judicial branches from exercising legislative authority independently.

Separation of Powers

The Separation of Powers is a foundational principle in the Michigan Constitution (and the U.S. Constitution) that divides government responsibilities among three branches: legislative, executive, and judicial. Each branch operates independently, ensuring no single branch gains excessive power. This system is designed to provide checks and balances, preventing tyranny and protecting individual liberties.

Mootness

Mootness refers to the legal standing of a case. A case is considered moot if, due to subsequent events, the issue at hand has already been resolved or is no longer relevant, rendering the court's decision unnecessary. In this case, the federal district court deemed the issue non-moot because ongoing restrictions remained, necessitating judicial review.

Eleventh Amendment Immunity

Under the Eleventh Amendment of the U.S. Constitution, states are generally immune from being sued in federal court by citizens of another state or foreign nationals. This immunity can only be waived by the state. In the judgment, the Court addressed claims related to this immunity, ultimately finding that the defendants had waived it by not raising it earlier in the proceedings.

Conclusion

The Michigan Supreme Court's decision in In re Certified Questions marks a significant reaffirmation of constitutional principles governing the delegation of power and the separation of governmental branches during emergencies. By invalidating the EPGA's unconstitutional delegation and limiting the EMA's application post-April 30, 2020, the Court ensures that executive actions remain within legally defined boundaries, subject to legislative oversight and judicial review. This judgment not only curtails potential executive overreach but also empowers the Legislature to play a pivotal role in managing state emergencies, thereby upholding the democratic structure and protecting individual liberties against unchecked governmental power.

Moving forward, this decision will serve as a critical reference point for both legislative drafting of emergency powers statutes and for entities challenging executive actions that may overstep legal confines during crises. It underscores the necessity for clarity and specificity in delegating powers, ensuring that emergency measures remain effective without compromising constitutional safeguards.