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Democrats need to be prepared to act against lawless Republican judges where they can


Nicholas Bagley points out the broader implications of the Michigan Supreme Court issuing an American Thinker blog post throwing out the governor’s COVID orders:

Last week, in a 4–3 party-line vote, Republican judges on the Michigan Supreme Court invalidated a law that had empowered a historically popular Democratic chief executive to take emergency actions to combat COVID-19. The basis for the decision was an antiquated doctrine that conservatives on the United States Supreme Court have signaled they want to revive.

That brazen ruling in Michigan previews where the U.S. Supreme Court might take the country, especially with the breathing room that a 6–3 conservative supermajority would create. Although the news media have mostly focused on what a Justice Amy Coney Barrett would mean for abortion and gun rights, her confirmation may pose a more fundamental threat to good governance. The United States Supreme Court, like the Michigan Supreme Court, may become an even more stridently partisan instrument than it already is, one that by design will frustrate Democratic efforts to govern.

Like other governors around the country, Michigan’s Gretchen Whitmer declared a state of emergency in March and enacted aggressive emergency measures to fight COVID-19. Those efforts found support in two separate laws, one of which—the Emergency Powers of Governor Act—was adopted in 1945.

By mid-June, statewide cases had dropped to fewer than 200 a day from a peak of more than 1,600. A study out of Imperial College London and the University of Oxford suggested that Whitmer’s efforts saved as many as 74,000 lives. (Full disclosure: I served as special counsel to Whitmer on her COVID-19 response and aided in drafting many of her executive orders.)

As in other states, lawsuits challenging the governor’s executive orders came fast. Republican judges proved receptive, even when the legal arguments were appallingly thin. Three months into the pandemic, for example, a federal judge in Grand Rapids declared that the governor’s statewide closure of gyms was so irrational as to be unconstitutional: “At this point, the bare assertion that gyms are dangerous is not enough to demonstrate a ‘real or substantial’ connection to public health, nor is it a set of facts establishing rational basis to justify their continued closure.” The judge’s decision was so far out of line that it earned him a swift, unanimous rebuke from an appeals court.

Another example was a 13-page concurring opinion from a Republican judge excoriating Whitmer for her COVID-19 emergency orders—in a case that had nothing to do with the pandemic (at issue was an emergency rule prohibiting the sale of flavored nicotine pods for e-cigarettes). “Totalitarianism,” the judge intoned, “has no place in America.” [One million eye rolls — ed.]

The judge’s rhetoric was so extreme, it bordered on parody: “Will we live under the thumb of autocrats in the hope that they will keep us safe? The world of our children and grandchildren hangs in the balance.” But the paranoid suspicion of government should be recognizable to anyone familiar with the conservative legal movement. As Chief Justice John Roberts has warned darkly, “The danger posed by the grow­ing power of the administrative state cannot be dismissed.”

It is almost impossible to overstate the dangers of reviving nondelegation doctrine, which would make it impossible for both Democratic Congress and presidents to govern. (Note too how anti-democratic Republican judges produce compound effects; the Michigan legislature will not amend its law because it’s gerrymandered to produce permanent control by the state’s Republican minority, a state of affairs the Roberts Court approved of despite its obvious incompatibility with the Constitution.) It will in cases such as this literally get people killed, and does not represent “law”; it’s just deranged cranks substituting their judgment with that of the officials the public actually elected to govern.

And it’s particularly remarkable to limit the ability of the legislature to authorize executive discretion to respond to a pandemic. If this isn’t a legitimate function of government, what is? Even at the height of the Lochner era the Supreme Court correctly recognized response to public emergencies as a quintessential use of the state’s police powers. This generation of Republican judges is more radical in some respects than their Gilded Age counterparts.

Republican judges who are contemptuous of democracy and don’t recognize the legitimacy of Democratic governments are not entitled to the presumptions of “judicial independence,” and the next Congress needs to prepare to use its Article III powers to challenge similar usurpations at the federal level.

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