Nick Krieger (@nckrieger):
Yesterday, in Phillips v. Snyder, the United States Court of Appeals for the Sixth Circuit affirmed a lower court's dismissal of several constitutional and statutory claims that sought to invalidate 2012 PA 436, Michigan's emergency manager law.
I feel the pain of those who are upset by the ruling. I really do. I absolutely abhor Michigan's emergency manager law. And yes, it would be great to see the federal courts strike it down. However, as much as it grieves me to say this, yesterday's ruling was not legally incorrect.
As I explained last April, the Legislature has immense constitutional authority to displace local governmental officials. And there is quite simply no federal constitutional right to elect local leaders. I have read the decision several times, and I cannot argue with the panel's ultimate conclusions.
Some people have decried the ruling as the decision of hostile, conservative judges who were appointed by GOP Presidents. While it is true that Judge Suhrheinrich was appointed by President George H.W. Bush, and Judges Rogers and Griffin were appointed by President George W. Bush, I suspect that this had very little, if anything, to do with their decision. Indeed, the three-judge panel affirmed the ruling of a generally sympathetic federal district judge in Detroit, who was appointed by President Clinton. I would also note that the most meritorious claim pleaded by the plaintiffs was probably an equal-protection (race discrimination) challenge to the emergency manager law. However, this claim was dismissed by stipulation of the parties, and was not before the Sixth Circuit judges on appeal.
Don't get me wrong: The fact that the appeal was unsuccessful does not make the emergency manager law right. It is a pernicious statute that has been used to strip power and control from the residents of some of Michigan's most economically disadvantaged areas. It overturns the will of the local electors and essentially invalidates the results of local elections. And it disproportionately impacts people of color, imposing upon their communities state-appointed receivers with near-dictatorial powers. The people of Michigan know it's a bad law — after all, they voted to repeal its predecessor statute for many of these very reasons.
I'll repeat what I wrote about this issue last spring:
This is exactly why I have argued that the emergency manager law can be more effectively challenged at the ballot box than by litigation. It is unlikely that any state court will strike down Michigan's emergency manager law as beyond the powers of the Michigan Legislature. And I strongly doubt that the federal courts will grant relief on any of the various claims that have been raised. But contrary to popular belief, the people of Michigan still have the power to directly repeal the emergency manager law by way of the initiative process.
Lawyers have said that they may ask the panel for reconsideration, ask the full Sixth Circuit to rehear the matter en banc, or file an appeal in the United States Supreme Court ("SCOTUS"). Of course, I have no special knowledge regarding how the courts might act in this or any other case. But given the composition of the Sixth Circuit, I doubt a petition for en banc review would be successful. And I also doubt that SCOTUS would grant certiorari in this matter.
We should give thanks to the attorneys and plaintiffs who have worked so tirelessly on this important case. At the same time, we should recognize that litigation has failed to produce the desired result, and further appeals seem unlikely to change the legal landscape. Perhaps opponents of Michigan's emergency manager law should think about pursuing other possible options — like attempting to repeal it through the initiative.