The side effects of having an unrepentant lawbreaker as a governor.
Something occurred to me this morning.
One of the ways in which government has been able to operate at a board level is by Zoom, of some other streaming service. The problem with this however, was the ways in which the streaming option limited the ability of those who wish to attend meetings and keep government open and transparent.
The answer was Executive Order 2020-15. EO 2020-15 changed the requirements of having the meetings, to allowing by remote access with limited public interaction:
Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:
Effective immediately and continuing until April 15, 2020 at 11:59 pm, to the extent that the Open Meetings Act, 1976 PA 267, as amended, MCL 15.261 to 15.272 (“OMA”) requires that a meeting of a public body be held in a physical place available to the general public or requires the physical presence of one or more members of a public body, strict compliance with section 3 of the OMA, MCL 15.263, is temporarily suspended in order to alleviate any such physical-place or physical-presence requirements, as follows:
Etc., and so on.. (feel free to follow through and see the conditions)
The order allows forms of electronic meetings that would not otherwise be allowed under legislative authority without the power assumed by the governor. It essentially kept local governments ability to operate under ‘stay home’ conditions that might arise.
And we should have no argument with that. In fact, it is a perfect example of what the governor’s power under PA390 (1976) should be; Authority to amend certain restrictions can keep things moving and operational in an emergency!
However, you might note that I did not include the authority to act under PA302 (1945) in the paragraph above. Here is where it gets interesting.
PA302 sanctioning to operate legislatively under an emergency does not exist. The Governor has relied on the Act authored in 1945 to extend her tenacious grip on legislative power over the state, yet what if the authority to create the act was unconstitutional?
And it may have been.
The 1908 Michigan Constitution was the authority in 1945. It was a fairly simple and straight forward constitution, with checks and balances as one might expect, and it clearly delineated the responsibilities of each branch of government.
Article IV of the constitution was clear that no shenanigans would be allowed with regard to that separation of power. It clearly and unequivocally assumed authority to limit each branch to stay in each respective corner of government.
DIVISION OF THE POWERS OF GOVERNMENT
Departments of government.
Sec. 1. The powers of government are divided into 3 departments: The legislative, executive and judicial.
Limitations of power of officers.
Sec. 2. No person belonging to 1 department shall exercise the powers properly belonging to another, except in the cases expressly provided in this constitution.
Section 2 is the lawman here.
If the 1945 act was written under this (1908) constitution, and there was no provision for a governor exercising a legislative power under ANY circumstance, how then might such an act allow it?
The question remains on how a court might rule on such a historical faux pas, but as clearly as that 1908 constitution is written, the governor cannot operate under a law that was on its face unconstitutional!
So circling back around to the matter at hand, we return to the local government operations. How can a government now remotely govern if such authority that the governor assumes, does not exist? EO 2020-15 can no longer be legal, and the governments that operate under it are in jeopardy!
Remote meetings for governing are not legal if the governor of Michigan no longer has the power to craft or enforce such orders.
And this my friends is why we must make sure our government leaders stick to the letter of the law and our constitutions. Government is now running amuck and breaking law because of overlapping and compounding mistakes in the interpretation and sloppy legislative management that continues to plague us.
In the end, it is not only the 1976 limitation of an emergency declaration that limits Whitmer’s strange desire to be Mommy for the state, but the inarguable fact that such 1945 authority never existed in the first place.
Oh yeah, be sure to let your local government know that they are breaking the Open meetings act, as any changes currently assumed are not valid any longer.