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Opinion | Michigan Supreme Court decision could cost lives in a pandemic

The Michigan Supreme Court has revived an innocuous-sounding and arcane legal concept that prevents our state government from protecting the public health, the environment, worker health and safety, and much more.

Marilyn Kelly
Marilyn Kelly is chair of the Wayne State University Board of Governors and retired chief justice of the Michigan Supreme Court. (Courtesy photo)

The concept is based on an obscure and extreme idea, one that federal courts have not relied on since 1935 and that Michigan courts never adopted. It is called the non-delegation doctrine. Conservative judges and partisan think tanks have urged the doctrine's acceptance to block key regulatory agencies like the Michigan Department of Environment, Great Lakes and Energy from fighting pollution and the Department of Health and Human Services from promoting public health measures that could save lives.

That means government actions protecting clean water, ensuring public health or promoting workplace safety during COVID-19 could be summarily undone. 

If this sounds like an unlikely threat, Michigan citizens should stop and consider. Recently, in a closely divided vote, the Michigan Supreme Court declared unconstitutional a 75-year-old law that confers authority on Michigan governors to take emergency action to protect our citizens. The court relied on federal case law and the non-delegation doctrine to strike down the Emergency Powers of Governor Act.

The Act was adopted when Republicans controlled all branches of government and remained in effect for nearly 80 years regardless of which party was in control. Despite that significant fact and the fact that acts conferring such powers on governors exist in nearly every state, the Michigan Supreme Court in the case of In Re Certified Questions relied on the non-delegation doctrine to rule Michigan’s act unconstitutional, thereby hamstringing Gov. Gretchen Whitmer’s emergency powers.


The ramifications of this unfortunate decision are massive. For example, a governor’s ability to protect public health in times of crisis can literally save lives. Legislatures, especially in times of crisis and public emergencies, are often ill-equipped to meet the moment at hand. For that reason, we have laws conferring power or “delegation” of authority to an executive like the governor, who can act swiftly and decisively to protect the public good – and in the case of the deadly COVID-19 pandemic – save lives.

The dynamic, ever-changing nature of the Covid-19 crisis requires near constant vigilance. It requires assessing and harnessing current expertise and information, quick decision-making in the wake of new facts, rapid recalibrations – all things legislatures are simply not designed for.

In resurrecting the non-delegation doctrine, the Michigan Supreme Court has established a truly dangerous legal precedent that could empower state and federal judges to strip long-established authority from Michigan’s governor and other state executives when it is needed most.

Our Supreme Court should never discard precedent without good cause. But grounds for it exist here. In Re Certified Questions is such an outlier and sets such a menacing precedent that the Court should reexamine it as soon as feasible.

If the decision can stand, the long-lasting negative consequences for the people of Michigan will reach far beyond the COVID-19 pandemic. Future generations of governors, legislators, and citizens must not be hobbled by this dangerous decision.

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