The Quarantine Queen Versus Representative Democracy

Even during emergencies, governors aren’t monarchs. Gretchen Whitmer just learned that the hard way.

Michigan Governor Gretchen Whitmer at the Romney Building where her office is located in Lansing, Mich., on May 18, 2020. (Brittany Greeson for The Washington Post via Getty Images)

Does representative democracy matter during a pandemic? Or do we dispense with it in favor of unchecked rule by executives and health departments?

Those questions recently came to a head in Michigan, when the state supreme court struck down emergency powers that had been wielded by an imperious governor. Gretchen Whitmer, who seems to think she’s some kind of Upper Midwest Holy Roman Emperor, had been granted sweeping authority back in March to fight the coronavirus under an emergency management law passed in 1976. But that statute also held that after 28 days she needed the approval of the Michigan legislature, which eventually declined to renew the state of emergency. So she simply ignored them, citing a different 1945 law that allowed her to take “reasonable” action “to protect life and property or to bring the emergency situation within the affected area under control.” Under its auspices, she issued more than 180 executive orders in the name of public health.

By far the most audacious of these decrees came back in April, when with the stroke of a pen, Whitmer made it illegal to visit friends, relatives, even vacation homes. All private and public gatherings of any size were prohibited. Sales of carpeting, paint, and gardening supplies at large stores were all banned, though Michiganders could still purchase state-sold lottery tickets. They couldn’t go golfing, motorboating, or hire lawn mowing services, though they could apparently attend Black Lives Matter protests, as Whitmer herself did in June. There was no logical consistency to any of it, because there rarely is logical consistency in an autocracy. The only standard was the whim of Her Excellency the Governor, who believed it within her sole purview to decide whether other people could sell trowels.

The backlash was swift. Retailers and farmers complained that they couldn’t make sense of the byzantine rules and received little help from the governor’s office. Police departments refused to enforce the executive orders, viewing them as unconstitutional. Whitmer later rescinded some of the measures, though she also continued to issue restrictions, creating more confusion. The peasants began filing lawsuits, and after one initiated by several medical centers landed in a district court, the judge requested that the state supreme court clarify what the governor could and couldn’t do. The supreme court hearings did not go well for Whitmer. One of the justices accused her of making “probably the largest claim of executive power that any governor has ever made in the history of Michigan.” Another, a Democratic appointee, warned that “once rights are forfeited or once rights are taken, they’re difficult if not impossible for people to reclaim them or get them back.”

The ruling came down last weekend and Whitmer’s scepter was predictably confiscated. It’s been widely claimed, including by the governor herself, that the court ruled on partisan lines, four to three, with only Republican-appointed justices going against her. But that’s misleading. On the main question—whether under the 1976 law Whitmer needed the consent of the legislature to extend her state of emergency beyond 28 days—the court was unanimous, deciding against her seven to zero. The narrower ruling was over whether the entire 1945 emergency law should be struck down, which it was. It was a clear rebuke, yet there was the Countess of Kalamazoo herself on Saturday, insisting that she didn’t have to relinquish power for another three weeks. This was contradicted by her own Democratic attorney general, who said the next morning that she would no longer enforce the executive orders.

All of this has proven a mess for Michigan, not a state known for its volatile politics (George Romney was once governor there). And in fairness to Michiganders, the question was never whether the pandemic was a threat. It also wasn’t whether the state needed a quarantine regulatory framework—it obviously did and does. It was whether all that authority should be vested in one person. Whitmer, almost from the start, behaved with complete impunity. She ignored the concerns of the legislature (which initially supported her state of emergency). She undermined her own public health rationale when she marched socially undistanced with BLM. She stretched the government’s powers deep into the grooves of everyday life without any kind of accountability or democratic consultation. She shrugged away anger from protesters and business owners, bragging about her “thick skin.”

If Whitmer would now like to govern, then she can do what the rest of the known free world does: work with other lawmakers and competing interests to achieve consensus within the confines of the law. Does representative democracy matter during a pandemic? Cheers to Michigan’s supreme court for affirming that it does. Other states whose governors have been acting too singularly should take notice.

Yet there’s a broader issue in play here too, one that’s at the heart of that four-to-three decision. The Michigan court struck down the 1945 emergency law under what’s known as the nondelegation doctrine. This holds that one branch of government can’t transfer its assigned powers to another branch. The question was whether the statute, which allowed the governor unilateral authority during a disaster, was an improper delegation of the powers of the legislature to the executive. The court ultimately said yes, citing a unanimously decided U.S. Supreme Court case, Whitman v. American Trucking Associations, which created a test: “whether a delegation is unconstitutional depends on two factors—the amount of discretion and the scope of authority.” Since the law allowed Whitmer to claim an immense scope of power (over an entire economy, indefinitely), it couldn’t stand.

Another Michigan justice, in a dissenting opinion, pointed out that the U.S. Supreme Court had only invalidated statutes under the nondelegation doctrine twice in its history. He noted that there were other avenues to rein Whitmer in: the legislature itself might have repealed the 1945 law. That’s a good point (though Whitmer would have vetoed any attempt to check her own power). Nevertheless the problem of legislatures delegating their powers to executive agencies is very real, and exists at the national level too. The federal administrative state now passes more rules than the president signs laws, government by unelected functionary. In which case, maybe we should consider whether the Michigan justices have a point. Maybe it’s time for the courts to start wielding the nondelegation doctrine less sparingly, to take Gretchen Whitmer’s royal waving as a cautionary tale.

Of course, the ideal solution would be for legislatures to reclaim their own authority, to stop the partisan squabbling and stand up for their greater institutions. But if you think that’s going to happen, I have some Michigan lawn fertilizer to sell you.

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