"Severe overreach" puts it kindly.

The MI Supreme Court struck down the relevant emergency powers law on "nondelegation" grounds--a doctrine that prohibits the Legislature from delegating power to the Executive if it the Legislature doesn't provide specific enough standards. /1 https://twitter.com/EliNSavit/status/1312142620638932998

This is a made-up doctrine by the federal courts (i.e., SCOTUS). And it's one they quickly retreated after using it a couple times in 1935.

The majority opinion (correctly) recognizes that Michigan's nondelegation doctrine is similar to the federal nondelegation doctrine. /2

But they nevertheless do what the U.S. Supreme Court hasn't done in nearly 100 years, and strike down the law on non-delegation grounds for failing to have sufficiently precise standards.

As the Chief Justice notes in her dissent, this is unprecedented. /3

It's true the standards are broad. But there ARE standards. And this is to deal with emergencies! The whole point of the law was to give flexibility to deal with the emergencies that arise. /4

Again, the Chief Justice makes the point nicely. The law was a specific as could be expected, given that it's for "emergencies" broadly--and emergencies can range from fires to flooding to pandemics to civil unrest (in a variety of geographic areas, to boot). /5

Think this is just a Michigan issue?

Think again.

Reviving the non-delegation doctrine has been a conservative legal project for some time. It's the tool by which they'll seek to invalidate a host of laws (environmental, consumer protection, financial regulation, & others). /6

Justice Gorsuch is known to be a big fan of the non-delegation doctrine. Will he have the votes to revive it with a Justice Barrett on the Court? Very possibly. /7

This would be a MASSIVE upheaval in law & government. But the MI Supreme Court's decision today demonstrates the prospect's very real.

In the midst of a pandemic, on the day POTUS was hospitalized with COVID, the Court undid an 80-year-old law used to deal with the crisis. /8

Feeling paralyzed by all of this? You don't have to be!

I'll say it again. The Michigan Supreme Court is 4-3 right now, and could flip in November. DONATE to @WelchForJustice & @BridgetMaryMc.

Welch: https://secure.actblue.com/donate/welchforjustice

McCormack: https://secure.actblue.com/donate/bmm-website?refcode=bmm-mainpain

/FIN

Postscript: if you're interested in just how made-up the "nondelegation doctrine" really is, @UMichLaw's own @nicholas_bagley & @jdmortenson are the experts.

See their piece in @TheAtlantic, here. https://www.theatlantic.com/ideas/archive/2020/05/nondelegation-doctrine-orliginalism/612013/