Commentary
10:42 am
Thu June 23, 2011

Mutual Assured Deterrence

Governor Rick Snyder’s Emergency Manager law was highly controversial even before it was passed - and yesterday, a coalition of twenty-eight teachers, union members and private citizens filed suit, claiming the law is unconstitutional.

In their view, it violates the state constitution because it gives the executive branch power over the legislative, violating the separation of powers, something fundamental to both the United States and Michigan constitutions. To me, the only thing surprising about this suit was that it took so long to be filed.

This is not the first of the governor’s sweeping reforms to face a constitutional challenge. Lawsuits have already claimed the taxing of pensions is unconstitutional. Such cases can often take months or even years to wend their way through the court system. But in the case of the pension tax, to his credit, the governor requested a speedy decision from the Michigan Supreme Court.

The justices have agreed to hear the case in September, which is lightning speed in high court terms.

Getting this resolved quickly makes perfect sense, partly so that the state can try to figure out budget alternatives just in case the ruling goes against them.

Deciding this early should also prevent the endless cycle of hearings, injunctions and motions to lift injunctions.

But as long as the high court has agreed to an expedited decision on the constitutionality of the pension tax, it should give us a speedy ruling on the emergency financial manager bill as well.

Everything I know about our state’s highest court, and the experts I have talked to about this, makes me think it is highly likely the justices will rule in Governor Snyder’s favor in both cases.

Naturally, I could be wrong. But if I am right, unions and officials in endangered cities are sure to be upset.

They see this as the first step towards the end of democracy as we know it.

That’s because in extreme cases, emergency financial managers can void duly negotiated contracts, and order millage elections. They can even dissolve a city or order two units of government to merge. Now, everybody concedes the legislature has the power to create and dissolve cities. But the lawsuit says the separation of powers means state government can’t appoint someone to run them.

However this turns out, as long as the law is on the books, I suggest our officials think about it in the same way we used to think about nuclear weapons. That is to say, as a deterrent against bad behavior. Mankind has been spared another all-out World War because atomic weapons mean everybody would die.

What I’d hope is that this law causes cities to clean up their acts, to spend money and negotiate contracts wisely, in order to avoid falling into emergency manager land.

Under the former, milder financial manager law, some cities  didn’t mind occasionally having one. Their politicians could then leave the really tough decisions to someone else.

Nobody in politics or government is likely to want to be in a place governed under the new emergency financial manager rules.

If this law causes people to behave rationally in order to avoid its consequences, then it will have done its job even without doing it.

Which might be the most desirable consequence of all.