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Bills flying in lame-duck frenzy could be unconstitutional, legal experts say

Paul Egan, Detroit Free Press on

Published in News & Features

LANSING, Mich. -- Republican lawmakers in Michigan may be violating the state constitution with fast-tracked bills in the lame-luck Legislature that curb the powers of incoming Democratic officeholders or water down proposals backed by Michigan voters, legal experts say.

"They're just going crazy," said Robert Sedler, a Wayne State University law professor.

Sedler, who has taught at Wayne State since 1977 and wrote a book on American constitutional law, cited a range of problematic bills -- from a package the Senate passed Thursday to strip enforcement of campaign finance laws from the secretary of state to one that restricts the incoming governor's choices to head the Michigan State Police, and bills that meddle with legislation and constitutional amendments backed by Michigan voters.

"In the 40 years that I've been here, I have not seen any such effort to curtail the powers of the governor and the executive branch," Sedler told the Detroit Free Press Thursday.

While there is no consensus among attorneys, several agree that at least some of the lame-duck bills are open to legal challenge, including:

House Bills 5526, 6314, and 6315: Each bill provides for a 13-member Education Accountability Policy Commission, which would have authority over public schools. Sedler said it would violate the powers set out in the constitution for the State Board of Education, which has "leadership and general supervision over all public education," with the exception of higher education.

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House Bill 6553: Would give each chamber the power to intervene in lawsuits involving the state. Currently, it is up to judges to decide who has "standing" in a court case. Sedler said the bill clearly infringes on the power of the judicial branch and also on the executive powers of the governor, as executed by the attorney general. Devin Schindler, a law professor at Western Michigan University Cooley Law School, disagreed, saying the Legislature is "taking advantage of the state judiciary's lax standing rules," and there is a precedent because lawmakers earlier passed a law giving the attorney general the right to intervene.

Senate Bill 1107: It would restrict the governor's power to appoint a director of the Michigan State Police by limiting the choice to officers already employed by the department who have served for at least 15 years, with at least five years at the rank of lieutenant or higher. Sedler said the bill would infringe on the constitutional powers of the governor, and Schindler agreed it would appear to do so.

Senate Bills 1248-52: Would strip campaign finance enforcement from the secretary of state and turn it over to a six-member commission. Sedler said it infringes on the executive powers of the governor, as carried out by the secretary of state. The Legislature could repeal all campaign finance laws if it chose to, but it can't dictate how existing laws should be enforced, which is an executive function, he said.

Senate Bills 1238-40: Would affect the Promote the Vote constitutional amendment intended to increase voter access, which was approved by voters in the November election. The bills tweak a provision that allows a person to register to vote up to the day of the election to add more proof of residency and citizenship. Sedler said that under the provisions of the Michigan constitution no legislative vote -- by a super majority or otherwise -- can change a voter-approved constitutional amendment.

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