Michigan Supreme Court Strikes Down Whitmer’s Use of Emergency Powers

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On Friday, Michigan’s Supreme Court ruled that Governor Gretchen Whitmer lacked the authority to extend or declare states of emergency relating to the COVID-19 pandemic, stating a 1945 law repeatedly used to support the use of powers is unconstitutional.

Whitmer issued an executive order in March which declared a state of emergency; another order was used in April to extend it. The state’s Republican-controlled legislature passed a resolution to extend the state of emergency until April 30, but Whitmer has issued many more orders since then. She has cited two state laws— the Emergency Management Act of 1976 and the Emergency Powers of the Governor Act from 1945. The latter was declared unconstitutional by the Supreme Court.

The decision was 4-3 along party lines. The majority opinion, written by Justice Stephen J. Markman, stated, “We conclude that the Governor lacked the authority to declare a ‘state of emergency’ or a ‘state of disaster’ under the EMA after April 30, 2020” and that the “the EGA is in violation of the Constitution of our state because it purports to delegate to the executive branch the legislative powers of state government. . .”  A statement from Whitmer called the decision “deeply disappointing.”

Although the constitutionality of the ’45 law created a split ruling, the court unanimously agreed that all orders made without input from the Legislature past April 30 were invalid. 

She also stated that her emergency declaration and related orders are still in place for 21 days and that many will continue under “alternative sources” of law. It is likely she will act under public health statutes such as those that the state health department has mirrored. 

“Every state and the federal government have some form of a declared emergency,” she continued. The ruling came the same day that Whitmer had rolled back the reopening in the state’s Upper Peninsula due to a huge upsurge in cases. “With this decision, Michigan will become the sole outlier at a time when the Upper Peninsulas experiencing rates of COVID infection not seen in our state since April.” 

The state’s Attorney General Dana Nessel has decided to stop enforcing Whitmer’s orders, even during the 21-day period. Ryan Jarvi, a spokesman for Nessel’s office, stated, that her decision is not binding for other law enforcement agencies and that  “It’s her fervent hope that people continue to abide by the measures that Gov. Whitmer put in place . . . since they’ve proven effective at saving lives.”