With two concurring opinions, three dissents, 74 footnotes and a combined 48 pages of opinions, the Michigan Supreme Court yesterday said no, it would not issue an advisory opinion on the legality of the recently enacted state PSL law. In the one-paragraph opinion of the Court, the Court said that “we are not persuaded that granting the requests would be an appropriate exercise of the court’s discretion.” Both state legislative chambers had asked the Court for an advisory opinion on the legality of the PSL law enacted last year through a “pass it, then amend it” political ploy. The legislators had hoped the Court would decide whether a law implemented through the use of that ploy was constitutional.
It all began with PSL proponents had collected enough signatures to have voters decide in November 2018 whether to enact a PSL initiative. The Michigan Constitution gives the legislature the option to enact such an initiative, negating the need for a vote on it. Both legislative chambers, both with GOP majorities, had concerns about the substance of the PSL bill. They decided to enact the voter initiative and then amend it. This strategy was adopted because amending a statute enacted by the legislature requires a majority vote in each legislative chamber while amending a statute enacted by a voter initiative requires a three-fourths vote of each chamber.
The urgency to implement this strategy increased in November 2018 when voters elected a Democratic governor who would take office in January and would likely veto the effort to amend the PSL law. Last Fall, the legislature enacted the initiative and a few months later amended it. In December, lame duck GOP Governor Rick Snyder signed the amended bill, which is now in effect.
In April, 2019, the Court agreed to consider whether to issue such an opinion. Oral argument on that issue was held in July.