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Michigan Supreme Court Terminates Governor’s Emergency Powers

The Michigan Supreme Court has just struck down their Emergency Powers of the Governor Act as unconstitutional, adopting the very arguments we are making in our case against Gov. Newsom.

This decision is a major boost to our case and has raised the stakes for next Wednesday considerably.

The Michigan ruling terminates all of the Governor’s emergency orders. It is undoubtedly the most important decision yet. And it comes just two days after we told the California Court that “the time for a judicial check has arrived, as has already occurred in numerous other states.” 

Reading the 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.”

Another example:

  • 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.

In our case, 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 violated the Constitution.  But even if the Court buys his arguments, by the reasoning of the Michigan case the statute itself will be found unconstitutional.

For Newsom, the writing is on the wall.

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