Michigan High Court Strikes Down Governor’s Covid Emergency Orders

In a pool photo provided by the Michigan Office of the Governor, Gov. Gretchen Whitmer tells Michigan residents to stay at home in a March 23, 2020, emergency order. (Julia Pickett/Michigan Office of the Governor via AP, Pool)

LANSING, Mich. (CN) — A deeply divided Michigan Supreme Court on Monday voided emergency health orders issued by Democratic Governor Gretchen Whitmer in the early days of the coronavirus pandemic.

The 4-3 order by the high court comes in response to a lawsuit filed by the Republican-controlled Michigan Legislature that sought to clarify the legality of Whitmer’s actions taken under the Emergency Powers of Governor Act of 1945 to combat the Covid-19 pandemic.

The Justices overturned a recent 2-1 decision by the Court of Claims finding the act gave Whitmer the power to issue her emergency orders. Monday’s ruling comes after the high court found on Oct. 2 that found the 75-year-old emergency powers act is incompatible with the Michigan Constitution because it unlawfully delegated legislative power to the executive branch. The court also responded to a certified question from the federal court to confirm Whitmer did not have authority past April 30th to make any restrictive orders related to the Covid-19 pandemic without the approval of the legislative branch.

“Executive orders issued under that act are of no continuing legal effect. This order is effective upon entry,” the majority wrote in Monday’s 2-page order

The Oct. 2 ruling — an answer to questions from the federal judge overseeing a separate challenge to Whitmer’s orders — held Whitmer had the authority to declare a state of emergency only once. Extensions of the state of emergency had to be approved by the Legislature, the majority found.

“The Governor only possessed the authority or obligation to declare a state of emergency or state of disaster once and then had to terminate that declaration when the Legislature did not authorize an extension; the Governor possessed no authority to redeclare the same state of emergency or state of disaster,” the order said.

Both rulings fell along party lines. In her dissent Monday, Chief Justice Bridget McCormack said Whitmer’s orders were valid if they were “reasonable,” “necessary,” meant to “protect life and property” or bring the emergency situation under control.

Fellow Democratic Justice Megan Cavanaugh joined McCormack’s dissent. Democrat Richard Bernstein wrote his own, saying he labored over the decision but ultimately believes the people of Michigan should challenge Whitmer if they see fit.

“I would leave to the people of Michigan the right to mount challenges to individual orders issued,” he wrote.

The justices struck a hopeful tone in the order that a compromise could be found.

“It should again be emphasized that our decision today leaves open many avenues for our governor and Legislature to work together in a cooperative spirit and constitutional manner to respond to the Covid-19 pandemic.”

The Michigan Department of Health and Human Services recently announced new orders to restrict the size of gatherings, require face masks in public spaces and child care facilities, limit capacity in businesses and create safer workplaces.

%d bloggers like this: