The Detroit News: Michigan can learn from emergency powers battles in other states

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The pandemic is subsiding in America. Masks are coming off. People are gathering. There is light at the end of the tunnel.

But in a few states, governors are still fighting tooth and nail to keep their emergency powers.

Kentucky Gov. Andy Beshear is suing his own state Legislature after it passed laws that put reasonable guardrails on his emergency powers.

Right here in Michigan, Gov. Gretchen Whitmer has sidestepped a state Supreme Court ruling by commandeering the Michigan Department of Health and Human Services to do her bidding.

The more we see governors cling to their emergency powers after their emergency expires, the less we can escape the obvious question: Why do they do it?

Beshear’s lawsuit provides some insight into his motivation: He argues that emergency powers are inherent to the governor’s office and that the Legislature is incapable of making any laws on an issue once he has declared it an emergency, and those orders must stay in place until the governor decides they are no longer necessary. Our organization, Pacific Legal Foundation, represents three businesses impacted by the governor’s orders in a separate lawsuit that was heard by the Kentucky Supreme Court earlier this month.

The Kentucky Constitution, just like Michigan’s and all other state constitutions, designates a particular role to each branch of government. The Legislature is tasked with writing laws, the executive carries out those laws, and the courts resolve cases by interpreting those laws. This separation of powers is the genius of American government. When the power of government is concentrated into one body or, worse, one person, there is no guarantee of liberty.

The Michigan Supreme Court rightfully held that the broad grant of legislative authority to the governor during times of emergency violated the separation of powers. Yet Michigan remained under onerous restrictions even after the decision. Instead of issuing the orders herself, Whitmer issues emergency orders via the Michigan Department of Health and Human Services.

Over the last year, governors kept telling us they only used emergency powers to save lives from the virus. But as the threat of COVID recedes, the true intent of some is being laid bare. Today’s grasps at power are no longer simply about public health or safety — they are about keeping emergency powers in the back pockets of governors.

The ease with which governors were able to bring the economy to a halt, shut down gatherings, impact health care, close schools and touch seemingly every aspect of our lives did not go unnoticed, however. There has been a growing call from activists that governors should declare emergencies wherever they are unhappy with the actions or inactions of the people’s (elected) representatives. More alarming are calls to declare emergencies for chronic public policy issues like racism and climate change.

Whether a person believes that a governor would do a better or worse job than the Legislature at handling these complex policy issues is irrelevant. One person or administration assuming the role of another branch of government is an unconstitutional threat to individual liberty.

While emergency powers may be appropriate on occasions like natural disasters or the initial onset of a pandemic, the Legislature needs to place safeguards on those powers as has been done in states across the country.

This is not a partisan issue. Red legislatures have limited the emergency powers of Republican governors in Utah, Idaho, Montana, North Dakota and Ohio. In fact, it would be more partisan if these states kept unconstitutional powers in place because a legislator would more likely approve of the current governor’s actions out of loyalty to that person — or political party.

As Michigan proves with its Republican-held Legislature, however, partisanship by itself doesn’t stop unlawful use of executive powers. For the future, legislators of both parties should look to place safeguards on the governor’s emergency powers for reasons that benefit all Michigan residents: to preserve individual liberty.

This op-ed was originally published by The Detroit News on June 22, 2021.