Nondelegation doctrine resurfaces in challenge to Michigan coronavirus orders

The Michigan Supreme Court on October 2 revived the nondelegation doctrine in an opinion holding in part that Michigan’s Emergency Powers of the Governor Act (EPGA) unconstitutionally delegates legislative power to the executive branch.

Governor Gretchen Whitmer (D) claimed that the declared states of emergency and disaster in response to the coronavirus pandemic authorized her to issue executive orders instituting coronavirus-related restrictions. Whitmer stated that the EPGA and the Emergency Management Act (EMA) allowed her to extend those emergency declarations without the state legislature’s approval.

Medical groups filed suit in the United States District Court for the Western District of Michigan to challenge an executive order, since rescinded, that placed restrictions on nonessential medical and dental procedures.

The district court asked the Michigan Supreme Court to consider in part whether the EPGA or the EMA violated the nondelegation doctrine.

The majority held that the EMPGA violated the nondelegation doctrine because it delegated lawmaking authority to the executive branch. Justice Stephen Markman wrote in the majority opinion, “[T]he EPGA is in violation of the Constitution of our state because it purports to delegate to the executive branch the legislative powers of state government— including its plenary police powers— and to allow the exercise of such powers indefinitely.”

Justices McCormick, Bernstein, and Cavanagh, and Bernstein disagreed with the majority’s conclusion. The justices claimed that the United States Supreme Court and the Michigan Supreme Court have historically applied the nondelegation doctrine via a “standards” test (i.e. intelligible principle test) that only strikes down delegations of authority without guiding standards for agency discretion. The delegations of authority under the EPGA, the justices argued, contained sufficient guiding standards.

Justice Viviano agreed with the majority’s holding and suggested that the court in future cases adopt the nondelegation doctrine approach put forth by U.S. Supreme Court Justice Gorsuch in _Gundy v. United States_, which focuses on whether Congress delegated lawmaking power to the executive rather than whether Congress provided a guiding standard.

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