Remarks on In re Certified Questions
It is an honor this afternoon to address the Pacific Legal Foundation, an organization I have long admired and respected.
I have been in the nation of Ukraine for much of the past several months and will soon be returning, although there are contingencies. During this time, I have served as a member of the Selection Commission of that country, a commission, established under the laws of that nation, to recommend the selection of 16 members of its High Qualifications Commission, a body that will fill more than 1000 judicial vacancies. I am one of three “international” members of the Selection Commission, chosen by “stakeholder” countries of Ukraine, including the United States, as well as by Ukraine itself, to enhance the integrity and independence of the Ukrainian judiciary.
Recently, in preparing for our selection process, the Commission, which is also comprised of three Ukrainian judges—one a member of its Supreme Court—set out standards to define the future judicial-selectors of Ukraine. One of these is that such persons must possess “an understanding of both the authority of the judiciary and the limitations upon that authority, including limitations that can be derived from the authority of other constitutional institutions of Ukraine.” In other words, the 16 persons to be chosen as Ukraine’s judge-selectors must possess an understanding of the principles Montesquieu and Madison outlined concerning the ‘separation of powers.’ They must further possess an understanding of the impact of this ‘separation of powers’ upon what the preamble to Ukraine’s Constitution describes as the “human rights and freedoms” belonging to the people. Ukraine, in my judgment, is a nation looking toward its future in the right direction. And in the course of further acquainting themselves with the “‘separation of powers,”’ there will, I hope, be at least some candidates for the Qualifications Commission who will look to the American experience with this foundational principle of constitutionalism, its origins and development, its virtues, its successes, and its challenges.
One such challenge of my own recent experience arose in 2020 and concerned the Governor of Michigan’s emergency authority during the COVID-19 pandemic. This challenge arose shortly before our state constitution compelled my departure from the Supreme Court of Michigan on account of its irrebuttable presumption of senility on the basis of my age. And, there were at least a few Michiganders who believe that the opinion I eventually wrote concerning the Governor’s authority only underscored the wisdom of that presumption. The opinion was entitled In re Certified Questions and arose specifically from a challenge brought by a medical provider and its patient to an emergency order forbidding ‘non-essential’ medical procedures. The result was a 4-3 decision, striking down the state law relied upon by the Governor to justify a wide range of powers in response to the COVID crisis. The opinion was given considerable national attention at the time, as the first state court decision to broadly strike down an exercise of emergency COVID powers.
I am generally averse to speaking broadly of the “separation of powers” as if it were some kind of generalized constitutional policy separate and independent from the specific provisions and architecture of the constitution. Rather, it is a summation of those provisions and their purpose. Perhaps best put, the issue in Certified Questions concerned the compatibility of the Legislature’s enactment of the “Emergency Powers of the Governor Act” in 1945 with the state constitutional command that the “legislative power of the State of Michigan is vested in a senate and a house of representatives.” And indeed, that was the precise question certified to our Court by the federal district court: a question of state constitutionalism.
Let me please offer several somewhat-random thoughts concerning Certified Questions for your consideration:.
