Nick Krieger (@nckrieger):
On May 5, 2015, Michigan residents will go to the polls to vote on Proposal 1, a proposed amendment to the Michigan Constitution. Proposal 1, if adopted, will amend the state constitution to (1) alter the permissible uses of the School Aid Fund, (2) exempt most retail sales of motor-vehicle fuel from the sales tax, (3) dedicate a portion of the state’s use-tax revenue to the School Aid Fund, and (4) permit the Michigan Legislature to raise the sales tax by 1 percent to provide funds for schools, school employees’ retirement plans, community colleges, scholarships, career & technical programs, and local revenue sharing. Proposal 1, itself, has nothing to do with fixing the roads.
Last December, as the Michigan Legislature was devising this proposed constitutional amendment, it was also busy working to pass 10 entirely separate laws dealing with subjects ranging from road funding, to mandatory disclosures by school districts, to vehicle registration fees, to tax credits for working families. These 10 separate laws have already been adopted by the Legislature, enrolled, signed into law by the Governor, and assigned public act numbers. None of these 10 public acts would ordinarily require a vote of the people to take effect.
Nevertheless, as part of its late-night maneuvering , the Legislature decided that it should make each of these 10 public acts contingent on the outcome of Proposal 1. Accordingly, the Legislature included language in each of the public acts explicitly stating that the act would not take effect unless the voters approve Proposal 1 on May 5th.
Two of the 10 public acts (which, as noted, have already been signed into law) raise the gasoline and diesel tax and earmark the resulting revenue for transportation purposes. It is this money from the increased gasoline and diesel tax—and not the money from the additional 1 percent sales tax—that would be used to fix the roads.
In Michigan, public acts generally take effect 90 days after the end of the legislative session at which they were adopted, unless the Legislature gives them immediate effect by a two-thirds vote in both the House and Senate. But there is one exception to this rule.
The Michigan Constitution provides one way in which the Legislature can make the effectiveness of a public act contingent on the outcome of a statewide election: Under Article IV, section 34 of the Michigan Constitution, the Legislature may submit a public act to a statewide vote and declare that the act will not take effect unless it is "approved by a majority of the electors voting thereon."
The Michigan Constitution places limits on the power of the Legislature, and those limits may not be exceeded. Ordinarily, when the Constitution explicitly grants the Legislature power to do something in a particular way, all other ways are prohibited by implication, and the particular way expressed in the constitutional text is the only manner in which the power can be exercised. Therefore, because the Michigan Constitution expressly allows the Legislature to tie the effectiveness of a public act to a statewide vote in one manner only, it necessarily prohibits the Legislature from tying the effectiveness of a public act to a statewide vote in any other way.
To summarize, the Legislature is specifically authorized to submit a public act to a statewide vote and declare that the act will not take effect unless it is approved by the voters. It unavoidably follows that the Legislature is not authorized to declare that a public act will not take effect unless the voters approve a proposed constitutional amendment. Yet this is exactly what the Legislature has done. Instead of submitting each of the 10 public acts to the voters separately as required by Article IV, section 34, the Legislature has unconstitutionally tied the effectiveness of all 10 public acts to the outcome of the May 5th vote on Proposal 1.
I acknowledge that the Michigan Supreme Court has stated that the Legislature " 'may enact a valid law to take effect upon the happening of any future event, certain or contingent, which does not involve the exercise by others of that legislative will and discretion, which cannot be constitutionally delegated.' " As the Supreme Court observed, the Legislature has made at least one other public act contingent on the passage of a proposed constitutional amendment in the past (1993 PA 336 and Proposal A). But the above-quoted language was not necessary to the outcome of the case under consideration and is therefore not a binding part of the Supreme Court’s holding. Moreover, the Court’s language was taken directly from a 1906 decision, which was decided under the Michigan Constitution of 1850. The provision at issue here—describing the manner in which the Legislature may submit a public act to a statewide vote—was not contained in the Michigan Constitution of 1850, and did not come into existence until the Michigan Constitution of 1908.
Although it certainly could have increased the gasoline and diesel tax without holding a statewide election, the Michigan Legislature clearly wanted the people to vote on raising the fuel tax—most likely to avoid any blame of its own for raising taxes. However, to achieve this result and permit the people to vote on the public acts in question, the Legislature was constitutionally required to submit each act to the voters separately. The Michigan Constitution simply does not allow the Legislature to tie the effectiveness of a package of bills to the outcome of a statewide vote on a separate, proposed constitutional amendment.
No court will likely address this issue before the May 5th election. And even afterwards, it is unlikely that the matter will ever be litigated. But it is interesting to note that, in addition to designing a scheme so convoluted that the average voter doesn’t have time to study it, our Legislature has chosen to disregard the state constitution and make up its own rules to suit its own political needs.