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AG Nessel Responds to State Superintendent’s Request on MiLEAP

LANSING Today, Michigan Attorney General Dana Nessel responded to the request made by State Superintendent Dr. Michael F. Rice for a formal Attorney General opinion regarding the constitutionality of Governor Gretchen Whitmer’s Executive Order (EO) creating the Michigan Department of Lifelong Education, Advancement, and Potential (MiLEAP).

During its August 8th meeting, the State Board of Education (SBE), unanimously passed a motion directing Dr. Rice to make the request.

In her response letter to Dr. Rice, Attorney General Nessel states that an opinion is premature:

“At this point, the EO is not yet effective and therefore has not been implemented by MiLEAP. And the Board acknowledges that, at this point, there is only the potential for overlap in the future, and no specific set of facts was provided for review.”

The Attorney General did, however, share her thoughts on the facial constitutionality of the EO:

“[T]he EO, in section 9(a), specifically states that, ‘[n]othing in this Executive Order should be construed to diminish the constitutional authority of the State Board of Education . . . .’ Therefore, the plain language of the EO indicates that it is intended to create a spirit of cooperation, coordination, and collaboration between MiLEAP and the Board that will complement the Board’s activities, while also specifically precluding MiLEAP from infringing on the Board’s constitutional authority. If that intent is honored, it creates a set of circumstances under which the EO would be valid. As a result, the EO is clearly not unconstitutional on its face.”

The letter does go on to mention the circumstances under which an opinion may be appropriate in the future:

“[A]fter the EO becomes effective in December and MiLEAP begins to ‘implement its vision,’ there could be actions taken by MiLEAP that the Board contends infringe on its constitutional authority. It is at that point, where a specific set of facts exists, that an opinion may be appropriate. Unless and until such a situation arises, however, issuing any type of opinion on potentially overlapping authority of the Board and MiLEAP is premature.”  

The Attorney General made a point to emphasize that “this letter should not be construed as any type of opinion, as I believe that, on its face, the EO presents no constitutional concern warranting the issuance of an opinion, but I also wanted to personally respond to you and the Board with my reasons for that belief.

Governor Whitmer announced the formation of the new state agency on July 11, 2023.


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