Donald Trump is making a quick swing through Flint today to do a photo-op and will undoubtedly blame the catastrophic poisoning of the city’s drinking water with the powerful neurotoxin lead on Democrats. This, of course, is patently and provably absurd. The poisoning of Flint is the direct result of decisions made by a parade of Emergency Managers appointed by our Republican governor, Rick Snyder.
Trump’s visit comes the same week as a three-judge federal court panel upheld the constitutionality Public Act 436, Michigan’s anti-democracy Emergency Manager law. The 6th District Court panel was weighing in on one element of a sweeping lawsuit filed in 2013 on behalf of a collection of Michigan residents and the AFSCME Council 25 union. Several other elements were dismissed by U.S. District Judge George Caram Steeh in 2014. However, Judge Steeh did allow one part to go through: the claim that PA 436 has a disproportionate impact on African Americans in our state.
The ruling this week has a couple of interesting things to take note of. The first is their contention that the residents of cities with Emergency Managers are not disenfranchised even though they are not able to vote for the decision maker in the local government (the Emergency Manager.) According to the judges, previous case law “[leads] to the conclusion that there is no fundamental right to have local officers exercising governmental functions selected by popular vote.”
I find that to be a shocking statement.
Second, the judges state that PA 436 does NOT violate the Equal Protections Clause of the U.S. Constitution. They consider financial distress in a municipality a legitimate reason for state takeover and, though they concede that it may not be the perfect solution, they found it to be legal:
With regard to the plaintiffs’ claims under the Equal Protection Clause, PA 436 passes rational basis review. The financial conditions of plaintiffs’ localities are the reasons for the appointments of the emergency managers. An entity in a distressed financial state can cause harm to its citizenry and the state in general. Improving the financial situation of a distressed locality undoubtedly is a legitimate legislative purpose, and PA 436, while perhaps not the perfect remedy, is one that is rationally related to that purpose. The emergency manager’s powers may be vast, but so are the problems in financially distressed localities, and the elected officials of those localities are most often the ones who—through the exercise of their powers—led the localities into their difficult situations. A rational relationship to a legitimate governmental purpose is all that is required for a law to pass this low form of scrutiny.
Attorneys for the plaintiffs are weighing their options. They can request an en banc hearing of the entire 6th Circuit Court and the case may end up before the U.S. Supreme Court should they decide to pursue it further.
For all of those folks asking “why isn’t this illegal?”, the decision this week is as close as we’ll get to an answer, I’m afraid. At the end of the day, cities and townships are creations of the State and the State has ultimate authority. Unless we change our state constitution to say otherwise or the U.S. Supreme Court overturns the lower courts’ decisions, Emergency Management in Michigan (and elsewhere) is here to stay.
But when you hear Republicans like Trump blaming the plight of Flint on Democrats who led these cities, remember that the greatest catastrophes in this beleaguered city happened during a time when the local leaders had literally no power whatsoever.