When the Michigan Supreme Court struck down that state’s Emergency Powers of the Governor Act as unconstitutional, it adopted the very arguments we are making in our case against Gov. Newsom.
So we took the opportunity to file this two-page summary of our legal argument with the Court.
In short, Newsom now faces a “heads you win, tails I lose scenario.” If the Court agrees with our statutory arguments, Newsom will be found to have overstepped the Emergency Services Act and violated the Constitution. On the other hand, if the Court buys his statutory arguments, the entire Act must be found unconstitutional.
Reading the Michigan Court’s opinion was a surreal experience since it so closely resembles our own briefing to the California Court. In fact, the Michigan Supreme Court uses the exact quote from the Federalist Papers with which we began our dispositive brief:
“The accumulation of all powers, legislative, executive, and judiciary, in the same hands may justly be pronounced the very definition of tyranny.”
(Recall that Newsom has actually argued the Emergency Services Act “centralizes” all of the “the State’s powers in the hands of the Governor.”)
The other similarities are striking:
- Our Brief: no statute can “give the Executive Branch a roving authority to create any and all new laws in any California code.”
- Michigan Decision: no statute can “confer upon the governor a roving commission to repeal or amend unspecified provisions anywhere in the entire body of state law.”
- Our Brief: “a statute that gives the Governor ‘discretion as to what the law shall be’ amounts to an unlawful delegation.”
- Michigan Decision: the statute “is an unlawful delegation of legislative power to the executive branch in violation of the Constitution.”
Most importantly, the Separation-of-Powers provision of Michigan’s Constitution is almost identical, word for word, to the one in California’s Constitution.
The trial is one week from today.
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