By: William Wagner Published 10:49 p.m. ET Feb. 6, 2019
This week the News reported on how the
Governor and the Michigan Civil Rights Commission added sexual
orientation and gender identity to the list of protected classes under
Michigan law. (“Michigan gay rights fight continues amid GOP
roadblock”, Jan. 28, 2019). The merits of the underlying policy aside,
both executive actions blatantly violate the separation of powers
provided for in the Michigan Constitution.
The Governor issued her decree via an “Executive Directive.” The Governor’s office website misleadingly declares her Executive Directives “similar to Executive Orders.” Nothing could be further for the truth.
The Michigan Constitution expressly provides for Executive Orders. An Executive Order holds the force of law unless disapproved by the legislature. The Governor instead issued an Executive Directive, creating an appearance of the force of law, while strategically avoiding legislative review by the branch of government closest to the people. For good governance to function under the rule of law, though, truth matters.
Here is the truth. No provision for Executive Directives exist in the Michigan Constitution. Executive Directives lack the force of law and, consistent with our constitution’s separation of powers, must not amend a state statute.
Michigan’s civil rights statute, passed by the Michigan legislature, prohibits discrimination based on race, sex and various other classifications. The Governor’s Directive adds sexual orientation and gender identity to the list. The Governor knows she holds no power to do so. Her executive action cites to, and relies upon a similar action recently taken by the Michigan Civil Rights Commission.
The Commission as well knows it lacks the power to change a Michigan statute. Nonetheless, the Commission continues to openly defy the rule of law by disobeying a 2018 ruling by the Attorney General holding the Commission’s action improper. And even if the Commission, as expected, colludes with the new left-leaning Attorney General to justify its abuse of power, it will only exacerbate the corruption of governance.
Both the Governor’s and the Commission’s executive actions undermine the constitutional lawmaking authority held by Michigan’s elected Legislature. Neither the Governor nor the Commission holds authority to provide special protection and remedies for a new classification of individuals, beyond the classifications already listed in the existing Michigan statute. Indeed, the Michigan Constitution expressly provides “[t]he legislative power of the State of Michigan is vested in a senate and a house of representatives.”
The Michigan Legislature considered and rejected legislation eleven times since 1999 to amend the statute to add gender identity and sexual orientation to the list of covered classifications. Here the legislature made its intent clear. Michigan’s Governor and the Commission must follow Michigan law. They hold the constitutional duty to enforce the laws passed by the legislature, not make up their own laws. The Governor, heading the executive branch, lacks any constitutional authority whatsoever to change a statute via Executive Directive. Likewise, the Commission lacks legislature authority to change a statute and is not politically accountable to the people.
Under Michigan law neither an Executive Directive issued by the Governor, nor the action issued by the Commission is binding law. Neither can, therefore, make new classifications of discrimination unlawful in Michigan. Such executive action cannot therefore, legally bind officials and employers in our state. Nor can it provide legal remedies to alleged victims of discrimination.
Whatever your political position is on these important issues of our time, engaging in constitutional subterfuge and defying the rule of law is no way to accomplish it. At least not if you wish the policy enacted to be accepted as legitimate.
William Wagner is President and CEO of the Great Lakes Justice Center.