Thank you, Dennis Gargin, for finally providing a salacious letter to the editor. It had everything someone could ask for: Communism, Conspiracy, and Constitutional Analysis.
First, Mr. Gargin explicitly states the virus is a hoax! I never know what people mean by the virus is a “hoax.” Does it mean the virus isn't real or just the virus isn't as bad as the media portrays it to be? Quite frankly, if you think the virus is completely fabricated, there is no convincing you. If you did all your “research” on Facebook, Youtube, or InfoWars, your conclusions will probably not pass peer review scrutiny. I really hope Mr. Gargin does not end up like the people reported in South Dakota who, sick with COVID, used their last breath to call the virus a hoax.
Second, Mr. Gargin does a “deep dive” into the constitutionality of the Governor's actions. Now this has some merit, at least enough to have a real discussion about. Mr. Gargin refers to a recent Michigan Supreme Court decision that addressed two issues: first, does the Governor have authority to extend the State of Emergency past April 30, 2020, and issue executive orders relating to that emergency under the Emergency Powers of the Governor Act (EPGA) and/or the Emergency Management Act (EMA); and second, does the Emergency Powers of the Governor Act violate the Constitution.
Let's start with the second issue because it is simpler. The Michigan Supreme Court determined the EPGA was determined unconstitutional because of separation of powers. Basically, the court said the Legislators, not the Governor, illegally delegated their authority to the Governor. So, technically, we can blame the legislators from 1945 for violating the Constitution.
The next issue is a little more complicated. Basically, the Governor has the authority to issue a short-term state of emergency but must get it extended by the Legislature after 28 days or it expires. In this case, the Governor did issue a state of emergency and the Legislature did extend it once but refused to extend it past April 30. The Governor then issued an executive action declaring a state of emergency under the EPGA and the EMA. Discussed above, the EPGA was later found to be unconstitutional (hard to blame the Governor for using a power that existed since 1945). The court also said that the Governor had authority to issue a state of emergency under the EMA, but just could not extend it using the powers under the EMA without consent by the Legislators.
What the court did not discuss was the Governor's specific restrictions on travel, business, masks, etc. The Court specifically ruled on whether the Governor's powers were Constitutional, not her actions. The Governor has recently issued new restrictions, and, as Mr. Gargin asks, “Why are these different?” Primarily, these are different because they rely on a different source of authority, specifically, the new order relies on the Public Health Code. Technically, it is not even the Governor who issues these restrictions, but rather the Director of Health and Human Services. So, what is different? Basically, the primary difference is the authority which the Governor relies on for her actions.
Now, to be fair to Mr. Gargin, this specific issue has not been litigated yet. So, it is possible the court determines this action to be unconstitutional, as well. However, two main facts cut against that possibility. First, the order that declared the Governor's actions unconstitutional made a distinction between public health and public safety, implying a different set of laws would apply to public health (essentially saying the Governor should use the public health laws and she would be fine). Second, the Michigan Supreme Court is adding a new member who is likely to take a more expansive interpretation of the Governor's authority.
This is a great example where there can be real debate about an issue. Both sides can acknowledge the issues and the possibility they are wrong.