Advance Notice: Briefs

Harvard Law professor: GOP power plays may be unconstitutional

By: - December 11, 2018 12:33 am

Michigan Capitol | Susan J. Demas

A Harvard Law School professor, who also was a President Barack Obama appointee, says recent Michigan Republican moves to strip Democrats’ authority may be unconstitutional.

Laurence Tribe

Laurence Tribe is a professor of constitutional law at Harvard who helped write the constitutions of South Africa, the Czech Republic and Marshall Islands. He told the Michigan Advance that a GOP plan to move campaign finance oversight from the secretary of state’s office to a proposed commission and another that would allow the Legislature to name itself as an intervening party in court cases might violate the state Constitution.

“I think a compelling argument can be made that the attempt by the Michigan Legislature to restructure the State’s system of government in response to the Democratic victories in the elections for executive branch officials violates the letter and spirit of that bedrock provision of the Michigan Constitution,” Tribe wrote in an email.

“The newly elected governor and attorney general clearly have standing in state court to make that argument and to seek appropriate judicial relief,” he continued.

Tribe noted Article III § 2 of the 1963 Michigan Constitution states:

“The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.”

Obama, a Democrat, appointed Tribe in 2010 to serve as first senior counselor for access to justice. Tribe has written 115 books and articles and one of his works has been “cited more than any other legal text since 1950,” according to his Harvard biography.

Gretchen Whitmer (top), Jocelyn Benson (left) and Dana Nessel (right)

Republicans have defended the legislation and said the court intervention plan would not limit the authority of Attorney General-elect Dana Nessel or Gov.-elect Gretchen Whitmer, both Democrats.

They also have said a plan to form a new commission made up of three Democrats and three Republicans who would oversee campaign finance compliance has nothing to do with Jocelyn Benson being the first Democrat to win the secretary of state’s office in 24 years.

Under current state law, Benson’s office — like other secretaries of state before her — would oversee campaign finance law compliance.

There’s not a consensus, but other legal experts also say the plans may run afoul of the state Constitution, the Detroit Free Press reported.

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Michael Gerstein
Michael Gerstein

Michael Gerstein is a former Advance reporter covering the Governor's office, criminal justice and the environment.