Nick Krieger (@nckrieger):
On Thursday, Governor Rick Snyder signed HB 4822, the third-grade retention bill, which has now been designated as Public Act 306 of 2016 (with immediate effect). I have already explained many of my concerns with the legislation (including that it is probably unconstitutional), and will not repeat them here.
Instead, I wish to briefly address a different concern — namely, that Public Act 306 has been unconstitutionally ordered to take immediate effect.
As an initial matter, the Michigan House of Representatives passed the final version of HB 4822 (as recommended by the conference committee) by a vote of 60-47. Article 4, § 27 of the Michigan Constitution provides that the Legislature "may give immediate effect to acts by a two-thirds vote of the members elected to and serving in each house." For reasons I have discussed previously, it defies all logic to believe that two-thirds of the state representatives voted to give immediate effect to the final version of HB 4822 when only 60 of them voted for its final passage. This, standing alone, provides ample reason to conclude that Public Act 306 cannot constitutionally take immediate effect.
But there is a second reason to doubt whether Public Act 306 can take immediate effect: The Michigan House of Representatives never held an immediate-effect vote with respect to the final version of the bill.
True, the Michigan House voted to give immediate effect to an earlier version of the bill (Substitute H-5, as amended), which passed by a vote of 57-48 on October 15, 2015. However, there were several substantive differences between Substitute H-5, as amended, and the final version of HB 4822 that was recommended by the conference committee and ultimately passed by the Michigan House on September 21, 2016.
As noted above, the Michigan Legislature "may give immediate effect to acts by a two-thirds vote of the members elected to and serving in each house." Irrespective of whether two-thirds of the members of the Michigan House actually voted to give immediate effect to the earlier version of the bill on October 15, 2015, it is clear from the Journal of the House of Representatives that the House never voted to give immediate effect to the final version of the bill — i.e., the version that became the public act. If a chamber votes to give immediate effect to an earlier version of a bill, but that bill is subsequently altered before final passage, mustn't the chamber once again vote on the question of immediate effect? After all, if the chamber has only voted to give immediate effect to an earlier version of the legislation — which version was never enacted — how can it be said that the chamber has voted to "give immediate effect to [the] act" within the meaning of the constitutional provision?
Because the Michigan House did not vote to give immediate effect to the final version of HB 4822 (the version recommended by the conference committee, which ultimately became the public act), but only to an earlier version that was never enacted, Public Act 306 cannot take immediate effect.
Of course, I must point out that many of the provisions of Public Act 306, including those pertaining to the retention of pupils, will not become operative until the 2019-2020 school year. Therefore, establishing the legislation's legal effective date might not be as critical in this case as it is in others. But as the Michigan Legislature continues to haphazardly order immediate effect for more and more laws, it will become increasingly important to insist on its compliance with the constitutional language of Article 4, § 27.