Michigan voters face a host of ballot initiatives this November, including a proposal to repeal the State’s controversial Emergency Manager Law (formally known as Public Act 4). The law gives state-appointed Emergency Manager’s broad power to control the financial affairs of financially distressed cities and school districts. Most notably, an Emergency Manager can renegotiate or terminate union contracts so long as the state treasurer approves. This feature in particular has drawn the ire of union officials and rank and file municipal employees. If the ballot initiative passes in November, the law will be stricken automatically. But even if the initiative fails, the law must survive lawsuits aimed at its constitutionality under both the state and federal constitutions.
The legal challenges raise a host of interesting questions too complex to tackle in this post. The challenge that resonates most, I suspect, is the claim that the law essentially robs local citizens of their voting rights by replacing elected officials with a state-appointed outsider. I am sympathetic to this concern, but my hunch is that it fails as a constitutional argument.
The delicate balance between the powers of the state and federal governments has been a topic of debate since Hamilton and Madison penned the Federalist Papers back in the 1780s. The voting concerns at the heart of the Emergency Manager argument mirror the state versus federal debate: has the state usurped authority properly retained at the local level? You can debate the question as a matter of policy, but from a constitutional perspective, it seems to me cities come up short. Why? Because I don’t think either the state or federal constitution guarantees the right to form a city and control it locally. Ultimately, each sovereign state and its citizens can decide how to establish local units of government such as townships, villages and school districts. But these local governments don’t have an independent right to exist unless the state constitution gives it to them.
It’s possible the Emergency Manager Law would fail under other legal challenges. For example, does it violate the 14th Amendment to the U.S. Constitution by disproportionately impacting minorities? Or does it improperly infringe on the private contract rights of union employees who have their contracts unilaterally abridged? Good questions that will, no doubt, be answered over time unless voters short-circuit the conversation in November by approving the ballot initiative and repealing the law on their own.