Nick Krieger (@nckrieger):
The Michigan Legislature has enacted, and Governor Rick Snyder has signed, Senate Bill 801 — the annual school aid appropriations bill for 2016-2017. As you’ve probably read, Section 152b of the bill, now designated as Public Act 249 of 2016, contains an unprecedented appropriation of $2.5 million in state aid for nonpublic schools.
Many observers (including me) firmly believe that this $2.5 million appropriation is unconstitutional as violative of the second paragraph of Article 8, Section 2 of the Michigan Constitution of 1963. This constitutional provision, which was approved by the voters at the general election of November 1970, states in pertinent part:
No public monies or property shall be appropriated or paid or any public credit utilized, by the legislature or any other political subdivision or agency of the state directly or indirectly to aid or maintain any private, denominational or other nonpublic, pre-elementary, elementary, or secondary school. No payment, credit, tax benefit, exemption or deductions, tuition voucher, subsidy, grant or loan of public monies or property shall be provided, directly or indirectly, to support the attendance of any student or the employment of any person at any such nonpublic school or at any location or institution where instruction is offered in whole or in part to such nonpublic school students.
Article 8, Section 2 of the Michigan Constitution of 1963 was intended to prohibit all public aid to private schools. Period. As you can see, the constitutional language is incredibly broad, flatly banning numerous varieties of state assistance for nonpublic schools. Nor does it include an exception for “non-educational” expenditures or “non-instructional” aid as some commentators and journalists have erroneously suggested. Simply put, it prohibits all state appropriations for nonpublic schools, irrespective of their specific intended purpose.
Let me reiterate: Section 152b, which would appropriate $2.5 million in state funds for nonpublic schools, is blatantly unconstitutional. In accordance with his line-item-veto power under the Michigan Constitution, Governor Snyder could have disapproved Section 152b while at the same time signing the remainder of the bill into law. But he did not. Instead, he approved the entire bill, including the unconstitutional section, which took immediate effect as soon as he signed it.
After signing the bill, Snyder asked the Michigan Supreme Court to issue an advisory opinion on the constitutionality of Section 152b in accordance with Article 3, Section 8 of the Michigan Constitution of 1963, which provides:
Either house of the legislature or the governor may request the opinion of the supreme court on important questions of law upon solemn occasions as to the constitutionality of legislation after it has been enacted into law but before its effective date.
Now read that again. Do you see those words “before its effective date”? Public Act 249 of 2016 was given immediate effect, and therefore became effective immediately upon being signed by the Governor on June 27, 2016. Snyder waited until after the bill’s effective date to request an advisory opinion from the Michigan Supreme Court. In other words, Snyder’s request was untimely. For this reason, the Michigan Supreme Court has no jurisdiction to grant Snyder’s request or issue an advisory opinion on the constitutionality of the act. In re Request for Advisory Opinion on Constitutionality of 1975 PA 222, 395 Mich 361; 235 NW2d 745 (1975); see also In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71, 479 Mich 1, 12-13; 740 NW2d 444 (2005).
That isn’t the end of the story, though.
Enacting Section 3(1) of Public Act 249 of 2016 states that “[e]xcept as otherwise provided in subsection (2), this amendatory act takes effect October 1, 2016.” In his letter to the Michigan Supreme Court requesting the advisory opinion, Snyder similarly suggested that the act “becomes effective on October 1, 2016.” But does this mean that the act’s effective date is really October 1, 2016? No.
Article 4, Section 27 of the Michigan Constitution of 1963 prescribes the “effective date” for acts of the Legislature:
No act shall take effect until the expiration of 90 days from the end of the session at which it was passed, but the legislature may give immediate effect to acts by a two-thirds vote of the members elected to and serving in each house.
As noted, Public Act 249 of 2016 was given “immediate effect” under the foregoing provision. (Click here to read how the Michigan Legislature routinely abuses its “immediate effect” authority.) It goes without saying that an act of the Legislature cannot take effect on two different dates. An act must take effect at one specific, fixed time. When the Legislature purports to make the same act effective immediately and also effective at a later time, the grant of immediate effect must control. After all, the state constitution permits only one effective date; and whereas the procedure for ordering immediate effect is explicitly detailed in the constitutional text, the constitution makes no allowance for giving effect to a public act on a different, later day.
Consistent with the clear intent of the Legislature, the provisions of Public Act 249 of 2016 will not become operative until October 1, 2016. After all, Public Act 249 is an appropriations act, and that’s when the next fiscal year begins. However, because it was given immediate effect under the terms of Article 4, Section 27 of the Michigan Constitution of 1963, the act legally took effect on June 27, 2016. It is well settled that an act of the Legislature that is given immediate effect becomes effective as soon as it is signed into law.
Because Snyder waited until after the effective date of Public Act 249 to ask the Michigan Supreme Court for an advisory opinion on its constitutionality, the Court lacks authority to consider his request.