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Sunday, May 24, 2020

Michigan Court of Claims Ruling Over Executive Orders and Order Extension

For those interested in reading the document you can find Court of Claims Ruling on the Legality of Executive Orders. The Legislative complaint was not successful and is going to be bumped up to the Michigan Supreme Court. New groups of judiciary members will see things differently based on a wider stakeholder interest. There is law and at lower course the language and history may be more important than at higher courts where wider more fundamental issues could have influence.

It will be interesting to see how this turns out and how time frames will play into it.

There are number of ways to look at this:

1. From the Logic of Court:
-The request was to declare all orders and that which it rests upon  as invalid and without merit. The authority rest on Emergency Management Act and Emergency Powers of Governor Act. EO 2020-67 is a replacement and re-issuance of  No. 2020-33.

2. Case History: We might look to history of other cases but unfortunately unless they are related to a similar type disease previous cases are likely to be created with different situations in mind. It is a little like comparing apples to oranges. Even if there was Spanish Flu legislation it might be Apples to Mapples.

3. From a Representative Standpoint: As a nation we want to insure that people are empowered as much as possible. That means decisions should rest in the collective will. The problem is that during times of crisis the collective will is too slow to act on fluid evolving situations. The governor is one arm of collective will but the legislature is more grass root oriented. One is faster and one is slower and that is why such orders were created in the first place. Yet power must move to a rebalancing with legislature having a say.

4. From Constitutional Considerations: People should have as much freedom to earn, visit, worship etc. There are times when this may be restricted but as soon as it can be returned back to the least restrictive situation it should be. Decisions are made based on the vantage point of those who are making them. Data and science is a great way to make decisions but judgement on the "human elements" should also be included in those decisions.

There are ways to analyze this situation by going through in significant detail on the decisions made and why particular logic was used. However, any choice we make will also need to take into consideration future needs of of the state, pressures to reopen and the overall intent of governance within the social, legal, and legislative contracts made with people. This is likely why pressure will continue to mount and the governor will begin to open as to stay ahead of looming court cases that are likely to start favoring the plaintiff as the risk levels decline.


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