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A Letter from the President

March 2, 2020

By SBAM President Brian Calley

In the coming days, the Small Business Association will file an Amicus Brief with the Michigan Court of Appeals. It concerns a case challenging the validity of a properly passed piece of legislation which authorized moving an oil pipeline out of the straights of Mackinac and into a tunnel, through bedrock, 100 feet below the lake bed.

The environmental benefit of this legislation is obvious in that it removes 100% of any risk that an unlikely rupture would cause contamination of the Great Lakes. And the benefits of maintaining access to an affordable and consistent supply of energy is also obvious. But our reason for intervening pertains to a much broader concern at stake if this unlawful challenge were to prevail.

Every citizen of this state has an interest in our laws being applied in a neutral and uniform way. The legal challenge against Public Act 359 of 2018 is one born out of policy disagreement, and yet according to our constitution, policy is not made by courts or in unilateral executive action. The crux of the challenge against P.A. 359 is a technical one concerning a Title-Object Clause claim. In simple terms, it means that the title of the legislation is not descriptive enough. It is a weak and overtly political challenge. Here’s why this matters to us…

We advocate for and against legislation on behalf of small businesses and entrepreneurs. Sometimes things turn out in our favor and sometimes they do not. But when an issue is settled through law, it is supposed to give citizens confidence in the certainty of the law. In other words, you or we might not like the law, but at least it is possible to make plans around that law with confidence in how to comply with it. The Title-Object Clause challenge to this law, if successful, could be applied to virtually any existing law. It is so subjective and so political, that the consequences of it prevailing would throw our operating environment into substantial uncertainty. It would no longer be possible to have confidence in the validity of practically any law.

There is another troubling aspect of this legal challenge which would have significant negative consequences. The Attorney General claims that the law should be struck down because it fails to explicitly reference the use of a private party or contract to accomplish its statutory purpose in the title of the law. This is a rather bizarre and far-fetched basis for challenging P.A. 359. The state is a major purchaser of goods and services from vendors. It is difficult to think of any of those contracts explicitly provided for in the title of a law.

If this challenge were to stand, there would be many laws impacting Michigan’s small businesses would be thrown into question. The principals that our legal landscape are based upon would be compromised with novel and hyper-technical challenges and we would lack any real hope of consistent application of the law. This Attorney General’s challenge is bad for Michigan and for this reason, SBAM will join in the defense of our tradition form of governance.

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