Opinion: Whitmer's orders are unconstitutional no matter how she frames it

Michigan Gov. Gretchen Whitmer pulled out all the stops trying to be the most aggressively anti-COVID-19 chief executive, vying with New York’s Andrew Cuomo and California’s Gavin Newsom. She imposed harsh lockdowns, which many citizens considered irrational (why prohibit landscaping?), hypocritical (why allow — and participate in — BLM protests?) and ultimately more harmful than beneficial.

Critics claim that her “dictatorship” is unlawful. The 1976 “Emergency Management Act” gives the governor the power to declare a state of emergency in the event of epidemics or other disasters, but the act requires legislative approval after 28 days. Whitmer claims that her power derives from a similar 1945 statute, which has no time limit. 

That the 1976 statute supersedes the 1945 statute is clear enough. Anyone can see that the governor is acting outside the law. But that’s really beside the point. The crucial point is that both statutes violate the Michigan Constitution. 

Michigan’s Constitution (the 1963 version — its fourth), like the U.S. Constitution and most state constitutions, begins with a statement that the constitution is an act of the people — that the people are sovereign. The sovereign people then establish a legislature, “vesting” it with legislative power — the power to make laws. 

“We, the people of the State of Michigan,” it says, “grateful to Almighty God for the blessings of freedom” (how quaint!), “ordain and establish the state constitution.” 

Its section on legislative power says, “Except to the extent limited or abrogated by Article IV, section 6 or Article V, section 2, the legislative power of the State of Michigan is vested in a Senate and a House of Representatives.” 

The Article IV exception concerns the recently enacted redistricting commission. The Article V exception allows the governor to reorganize the state bureaucracy, with a “legislative veto” retained by the legislature. Apart from these details, the legislature is supposed to make the laws.

The people give the legislature the power to make laws. The legislators cannot give that power to anyone else. They cannot “delegate” the lawmaking power with which they are vested. This is known as the “nondelegation doctrine.” It is one of the fundamental points of American political and constitutional history, part of the great system of “separation of powers” and “checks and balances.”  

John Locke expressed this in his great Second Treatise of Civil Government (1689), which provided the basis for the American Declaration of Independence. The legislative power, he wrote, “being but a delegated power from the people, they [the legislators], who have it, cannot pass it over to others.” The people granted power only to make laws, not to make legislators. The legislature cannot turn the governor into a lawmaker. The legislature cannot transfer their authority of making laws, and place it in other hands, Locke writes. 

Thus, the U.S. Constitution begins with the statement that “All legislative powers herein granted are vested in a Congress of the United States,” much like the Michigan Constitution.  

For well over a century we took the nondelegation doctrine seriously. Congress did its constitutional duty and legislated rather than delegated. When it exercised its power to “establish post offices and post roads,” the third Congress debated at length whether it could allow the president or postmaster general to pick the routes and decided to designate the roads itself. Of course, congressmen recognized that some degree of delegation was unavoidable.

The power “to coin money,” for example, did not require members of Congress to operate the mint themselves. As Chief Justice John Marshall put it, Congress could distinguish between “important subjects, which must be entirely regulated by the legislature itself” and “those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details.”

Congress began to relax its legislative obligations toward the end of the 19th century. In 1887 Congress passed the Interstate Commerce Act, which gave what would come to be called an “independent regulatory commission,” the Interstate Commerce Commission, the power to establish “just and reasonable” rates for railroads. What was “just and reasonable”? Nobody knew. Later acts would prohibit “unfair methods of competition” and “discrimination on the basis of race,” and leave them to commissions to establish. 

It established a Tea Inspection Board and let it classify and grade imported tea. It gave the president the power to adjust tariff rates if he determined that other countries were not trading fairly with us. Immigration officers were given wide discretion, and often acted in an arbitrarily oppressive fashion.

The Supreme Court mostly went along, saying in 1928 that delegation was acceptable so long as the law provided an “intelligible principle” to guide administrators. Occasionally the court would draw the line, as in the Lever Act of 1917, which punished people for charging “unjust or unreasonable prices.”

Things got out of hand in the early days of the New Deal. The National Industrial Recovery Act and related acts allowed businessmen to set prices and otherwise collude under usually self-composed “codes of fair competition.” In several cases in 1935 and 1936 the court struck down these acts.

Conservative Justice George Sutherland called one “legislative delegation in its most obnoxious form,” and liberal Justice Benjamin Cardozo called another a “delegation running riot.” But this was the high-water mark of the nondelegation doctrine. In 1937 President Roosevelt threatened to “pack” the Supreme Court, and it backed down and accepted previously condemned delegations, clearing the way for the growth of the “administrative state.”

Since the 1970s there has been talk among law professors and judges about reviving the nondelegation doctrine to curtail the arbitrary power of executives and bureaucrats, and to make legislators do their constitutional duty. Whitmer’s executive orders are not “filling up the details” of legislation. They are “delegation running riot.”

The Michigan Supreme Court should set an example for the nation and strike them down.

Paul Moreno is the dean of social sciences and a history professor at Hillsdale College, where he is the William and Berniece Grewcock Chair in Constitutional History. A graduate of the University of Maryland, he is also the author of several books, including “The Bureaucrat Kings: The Origins and Underpinnings of America's Bureaucratic State.”