Nick Krieger (@nckrieger):
First, a little quiz: When can the Governor of Michigan unilaterally amend or repeal a state statute without the participation of the Michigan Legislature? Ok, it’s kind of a trick question — but also kind of not.
The answer: When he or she is reorganizing the executive branch of state government.
The delegates to the Constitutional Convention of 1961-1962 believed that it was important for the Governor to be able to regularly reorganize the executive branch of state government without seeking the Legislature’s approval. Hence, they drew on the already-existing powers granted by 1958 PA 125, and enshrined broad executive reorganization authority in the 1963 state constitution.
Today, the Governor of Michigan enjoys immense constitutional power to reorganize the executive branch of state government, subject only to disapproval by a majority vote in both houses of the Legislature. Article 5, § 2 of the Michigan Constitution of 1963 provides in relevant part:
[T]he governor may make changes in the organization of the executive branch or in the assignment of functions among its units which he considers necessary for efficient administration. Where these changes require the force of law, they shall be set forth in executive orders and submitted to the legislature. Thereafter the legislature shall have 60 calendar days of a regular session, or a full regular session if of shorter duration, to disapprove each executive order. Unless disapproved in both houses by a resolution concurred in by a majority of the members elected to and serving in each house, each order shall become effective at a date thereafter to be designated by the governor.
Unlike most executive orders issued by the Governor, executive orders pertaining to the organization of the executive branch or the reassignment of executive functions have “the force of law,” and are constitutionally afforded the same rank as acts of the Legislature. Indeed, executive reorganization orders are typically codified and included in the Michigan Compiled Laws. In essence, they are equivalent to state statutes, and often amend or repeal existing law.
Consider the State School Reform/Redesign Office (“SRRO”). When the Legislature created the SRRO in 2009, it placed the office within the Department of Education, to be overseen by the Superintendent of Public Instruction — an official who is employed by the elected State Board of Education. Among other things, the Legislature gave the Superintendent of Public Instruction the power to appoint the state school reform/redesign officer, the official who leads the SRRO. The SRRO remained in the Department of Education until 2015, when Governor Rick Snyder unilaterally transferred it from the Department of Education to the Department of Technology, Management & Budget (“DTMB”) by way of Executive Order 2015-9. In the same order, Snyder reassigned numerous functions from the Superintendent of Public Instruction to the state school reform/redesign officer, and changed the way in which the state school reform/redesign officer is chosen. In particular, the authority to appoint the state school reform/redesign officer was stripped from the Superintendent of Public Instruction and given to the DTMB Director, an official chosen directly by the Governor. In one fell swoop, Executive Order 2015-9 completely changed the way the SRRO operates; and it was all done without so much as asking the Legislature.
Of course, lawmakers could have disapproved Executive Order 2015-9 by taking action in both houses. But the GOP-controlled Legislature did nothing, blithely deferring to Snyder and allowing the order to take effect.
Would the SRRO be planning to use the 2015 M-STEP scores to close low-performing schools if the agency had remained where the Legislature originally put it — in the Department of Education? I doubt it. Since the SRRO has been moved to the DTMB, however, the school reform/redesign officer apparently no longer feels compelled to abide by the Department of Education’s promise not to use the 2015 test results in this manner. Whatever you think about the need for a strong Governor and the importance of flexibility in executive branch reorganization, you must admit that the Legislature’s decision to place the SRRO in the Department of Education made eminently more sense than the Governor’s decision to transfer it to the DTMB. After all, the Department of Education actually has something to do with schools; the DTMB does not.
That brings me to my last point: Article 5, § 2 of the Michigan Constitution states that executive agencies “shall be grouped as far as practicable according to major purposes.” School reform/redesign officer Natasha Baker has said that the major purpose of the SRRO is “to take the schools in the bottom 5% and move them to the top 25%.”
The constitutional purpose of the Department of Education is to oversee and supervise public schools. By contrast, the purpose of the DTMB is mostly budgetary — its function is to keep an eye on the state’s bottom line. If the real purpose of the SRRO is to help improve Michigan’s struggling public schools, as Baker insists, then the Governor violated the spirit of the Michigan Constitution by removing it from the Department of Education and grouping it with entirely unrelated agencies in the DTMB. On the other hand, if the major purpose of the SRRO is actually to save money by closing public schools and shifting the expense to lower-cost or nonpublic alternatives, as I suspect it might be, maybe I shouldn’t be so hard on the Governor. Perhaps it does belong in the DTMB after all — a department that has everything to do with cutting costs and nothing to do with improving education.