2020-10-10 09:19:50 UTC
John Adams, our second president, once described a republic as a
government of laws, and not of men. By this, he meant that we live by the
rule of law, even those of us who are entrusted with public office for a
time. The notion that no one is above the law remains true over 200 years
Checks and balances secure the rule of law. They prevent too much power
from becoming concentrated in the hands of too few or one. In our
republic, we have divided the powers of government into three departments:
legislative, executive, and judicial. No person exercising the powers of
one department shall exercise powers belonging to the other two. This
separation of powers, obvious if implicit in our federal constitution, is
explicit in Article III, Section 2 of our state constitution.
The legislative power is the power to make laws. It is vested in our
Legislature. Citing the intent to prevent the spread of COVID-19, Gov.
Gretchen Whitmer spent the last seven months exercising legislative power
through her executive orders. Those orders confined us to our homes unless
we had a government-approved reason to be out.
Those orders also closed schools, businesses, and every other facet of
civic life, unless Whitmer decided it was critical. Even since
allowing parts of the economy to reopen, she has continued to
micromanage daily life. And, for the last five months, she has been doing
all of this over the objection of the Legislature the people we elected
to make the laws we live by.
In 1803, the first chief justice of the United States penned words that
every lawyer knows by heart: It is emphatically the province and duty of
the judicial department to say what the law is. And that includes telling
legislatures and governors when theyve overstepped their legal authority.
A respected, independent judiciary is what keeps us from slipping into a
dictatorship or mob rule.
Without judges to protect our rights and to keep our leaders within the
bounds of the law, our constitution is just a collection of words on a
page. As the late Justice Antonin Scalia once reminded the U.S. Senate,
every banana republic has had a bill of rights.
Despite what some polls may say, many of our fellow citizens believe that
Whitmers orders have radically exceeded executive authority, however
honorable her intentions may be. We have been privileged to represent
several of them in court. Among them are men and women who, after years of
working tirelessly to build their businesses, suffered losses with the
stroke of the governors pen well, actually, over 180 stokes of the pen
so far. They had every right to ask the courts to decide if she has the
power to do that. And the courts had a duty to answer that question.
And answer it they did. At the beginning of October, the Michigan Supreme
Court struck down Whitmers orders by striking down the Emergency Powers
of the Governor Act of 1945 as an unconstitutional delegation of
legislative power to the executive branch. The Courts analysis tracks
with the core arguments we have been making in the federal courts in
Sothebys v. Whitmer, Mitchell v. Whitmer, and Emagine Theatres v.
Whitmer, and in an amicus brief we filed in support of the Legislatures
challenge to Whitmers executive orders.
e are proud to have been on the front line defending the republic from the
mortal danger of executive overreach. And, as a people, we are fortunate
that the Michigan Supreme Court has restored the peoples branch of
government to its proper role in deciding how we, as a community, will
respond to the virus.
In response to the Courts ruling, the governor incorrectly stated that
the decision is not effective for another 21 days: Under Michigan Court
Rule 7.315(C)(4), unless otherwise ordered by the Court, an order or
judgment is effective when it is issued Not 21 days later. Immediately.
Her emergency powers are over, and either the Court or the attorney
general should publicly clarify that Whitmers executive orders no longer
have any force of law.
Whitmer also said that many of the responsive measures I have put in
place to control the spread of the virus will continue under alternative
sources of authority that were not at issue in todays ruling. If the
governor intends to keep issuing orders, we intend to keep defending
constitutional norms and our liberties on to the end, however long and
hard that road may be.
Our freedoms were purchased at too great a price by too many good men and
women for us to flag in the fight. We owe it to our clients, ourselves,
and our posterity to battle on. And we shall never tire to do so.
Joseph E. Richotte is a shareholder with Butzel Long. He dedicates his
practice to vigorously defending against criminal and civil enforcement
actions that threaten business interests and personal liberty. Daniel J.
McCarthy is a shareholder with Butzel Long. He concentrates his practice
in appellate and commercial litigation for both state and federal courts.