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Nessel says she's not ready to decide constitutionality of executive order creating new education department

Lester Graham
Michigan Radio

Michigan’s attorney general said it’s too soon to determine whether an executive order from the governor violates the state Constitution.

Governor Gretchen Whitmer’s executive order created the new Michigan Department of Lifelong Education, Advancement, and Potential (MiLEAP). The order describes MiLEAP as ensuring “all available resources, data, and dollars are aligned around a single vision,” an educational one.

That led the State Board of Education to voice concerns about the potential for MiLEAP to infringe on its constitutionally-mandated powers. Earlier this month, the board unanimously voted to ask the attorney general for her opinion on the matter.

Legislative critics also chimed in, sharing skepticism about expanding the executive branch.

On Monday, Attorney General Dana Nessel announced she’s not ready to provide that opinion yet. She reasoned it would be premature since the order creating MiLEAP doesn’t go into effect until December.

“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,” Nessel’s letter to the State Superintendent read.

The letter also noted language in the executive order creating MiLEAP that suggested the new department was meant to work with the State Board of Education rather than replace it.

“Going forward, every kid will have a solid start when they enter kindergarten, a great foundation through elementary, middle, and high school, and the help they need to get an in-demand skill or degree to get a good-paying job. We appreciate Attorney General Nessel for her support on MiLeap. The governor won’t get distracted by political games but will stay focused on putting every student on a path to ‘make it in Michigan,” a statement from Whitmer press secretary Stacey LaRouche said.

Nessel left room for a potential opinion to come later once MiLEAP starts operating.

“If questions do arise about an actual, non-hypothetical situation where MiLEAP is allegedly encroaching on the board’s constitutional realm, those questions can be presented and will be reviewed,” Nessel wrote.

State education officials say they appreciate the reflections and implications of the letter.

"Given the response from the attorney general, I believe that the actions and possible encroachment of the new department will be closely monitored,” State Board of Education President Pamela Pugh said in an emailed press release.

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