High court strikes down Whitmer's emergency powers; gov vows to use other means

Lansing — In a landmark ruling with far-reaching implications, the Michigan Supreme Court decided Friday that Gov. Gretchen Whitmer violated her constitutional authority by continuing to issue orders to combat COVID-19 without the approval of state lawmakers.

The state's high court ruled 4-3 that a state law allowing the governor to declare emergencies and keep them in place without legislative input — the 1945 Emergency Powers of the Governor Act — is unconstitutional. 

The court was unanimous in ruling that a separate law — the 1976 Emergency Management Act  — did not give Whitmer the power, after April 30, to issue or renew any executive orders related to the COVID-19 pandemic after 28 days without Legislative approval.

The ruling, which was requested by a federal judge earlier this year, serves as advice to the federal court and indicates how the court would rule on a suit challenging Whitmer’s emergency powers.

The order essentially brings an end to Whitmer's ability to use emergency powers without legislative approval, but there are differing takes as to when the practical effect of the ruling would be felt. 

Whitmer argued her powers will remain in place for at least 21 days, an apparent reference to a 21-day period in which the governor can request a rehearing from the Michigan Supreme Court. 

The Mackinac Center for Public Policy, which brought the suit in federal court that led to Friday's ruling, argued the decision ends Whitmer's executive orders immediately, or, at the very least, as soon as a federal judge uses the ruling to decide the center's case. 

"It’s a matter of when we can get a court to implement it," said Patrick Wright, vice president for legal affairs at the Mackinac Center. 

"Anybody that is in the courts right now will point to this ruling and should win," said Wright, referencing other pending lawsuits against Whitmer. 

The majority opinion of the state's high court made clear on Friday the ruling would encourage Whitmer and lawmakers to collaborate on any emergency measures to combat COVID-19.

"Our decision leaves open many avenues for the governor and Legislature to work together to address this challenge, and we hope that this will take place," Justice Stephen Markman wrote in the majority opinion.

Whitmer said Friday she "vehemently" disagreed with the court's ruling, which she said made Michigan an "outlier" among the majority of states that have emergency orders in place.

The governor said that even after the Supreme Court ruling takes effect, her directives will remain in place through "alternative sources of authority." 

The ruling appears to leave intact orders issued by the Department of Health and Human Services, which have addressed some of the same subject matter contained in Whitmer's executive orders. 

Friday's Supreme Court ruling will ensure, Wright said, that "as our state continues to face the challenges that come with COVID-19, all of the people of Michigan will have a voice in the decisions that will impact our state in the years to come."

However, he conceded the Whitmer administration could retain some authority through other agencies. 

"If there are other laws or administrative regulation the governor can use — be they the Department of Health and Human Services or another agency — those are still in place," Wright said. But he added those orders could be reviewed to determine whether they overstep the standards outlined in the laws giving the departments that authority.

Friday’s Supreme Court ruling came after months of litigation over Whitmer’s executive orders, which have shuttered businesses, required residents to wear masks and, for a period, demanded they avoid nonessential trips outside their homes to stem the spread of COVID-19. 

The legal battles have involved a congressman, gyms, bowling alleys, an elderly barber who refused to close his shop in Owosso and the Legislature, which filed its own lawsuit nearly five months ago. 

Friday’s ruling was spurred by a suit filed by a trio of Michigan medical centers against Whitmer's order banning nonessential procedures. The ruling came 206 days after the governor first declared a state of emergency in Michigan because of the virus.

The ruling concluded the 1945 act violated the Michigan Constitution because it delegated to the executive branch the legislative powers of state government and allowed the executive branch to exercise those powers indefinitely.

"Under the EMA, 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 and thereby avoid the Legislature’s limitation on her authority," the ruling said.

The ruling said while the 1945 act only allows the governor to declare a state of emergency when public safety is imperiled, "public-health emergencies such as the COVID-19 pandemic can be said to imperil public safety."

Those ruling against the 1945 act were Justices Markman, Brian Zahra, Beth Clement and David Viviano. 

Viviano noted the orders issued by the Department of Health and Human Services in support of Whitmer's executive orders, appearing to leave the agency's authority in place.

"In other words, nearly everything the governor has done under the EPGA, she has also purported to do, via the DHHS Director," he wrote.

In his opinion, Markman wrote: "It is in no way to diminish the present pandemic for this Court to assert, as we now do, that with respect to the most fundamental propositions of our system of constitutional governance, with respect to the public institutions that have most sustained our freedoms over the past 183 years, there must now be some rudimentary return to normalcy."

Chief Justice Bridget McCormack wrote the dissent, joined by Justices Richard Bernstein and Megan Cavanagh. 

McCormack argued the federal and state supreme courts could only strike down a law as an unconstitutional delegation of power if there were no standards contained in the law to guide the decision-maker. The 1945 act, McCormack said, contained the standards that the governor's orders must be "reasonable" and "necessary" and issued in an attempt to protect life, property and bring an emergency under control. 

McCormack said the high court was "needlessly" injecting itself into an "emotionally charged political dispute."

The Supreme Court decision effectively found the 1945 law gave too much power to the governor and infringed on the authority of the Legislature, said Larry Dubin, emeritus professor of law at the University of Detroit Mercy.

But there was also "an unstated political underpinning in part to this decision," he said. 

"The governor has attempted to protect the general health of the citizens of the state while the Legislature has contended that those restrictions have been too limiting to the business interests of the state."

Reaction to ruling

Officials with the U.S. Department of Justice, which had raised concerns about Whitmer’s COVID restrictions, said the court’s ruling was a victory for the rule of law.

“The United States Constitution guarantees a republican form of government to every state in our free country. The Constitution does not permit any public official unlawfully to restrict our liberty,” Assistant Attorney General Eric Dreiband of the Civil Rights Division said in a statement.

“All public officials must respect the right of the people to govern themselves at all times, especially during a crisis.” 

​House Speaker Lee Chatfield, R-Levering, and Senate Majority Leader Mike Shirkey, R-Clarklake, celebrated the ruling and the impact it would have on the Legislature's own lawsuit challenging the governor's powers. 

"The governor had no right to extend the state of emergency over the Legislature’s objection. Our constitution matters, and this was a big win for our democratic process," Chatfield said.

Shirkey said the ruling ensured "a system of checks and balances" but also warned residents against dropping their guard in defending themselves against the virus. 

"This ruling does not alter our collective responsibility to protect ourselves and others by wearing masks, social distancing, and washing our hands," Shirkey said. "The virus still presents a threat to our health and we must be vigilant in our actions."

The Legislature stands ready to deliberate in a bipartisan way on pandemic response, Chatfield and Shirkey said. 

Early on in the pandemic, the GOP-led Legislature submitted some suggestions to Whitmer that were eventually adopted within the executive orders and, since then, lawmakers have passed some laws that supported her executive orders, such as those pertaining to school reopening protocol. 

Other bills the Legislature has approved regarding COVID-19, such as liability assurances for medical providers, have been vetoed by Whitmer. 

"Now is the time for bipartisan action to transition from government operating in fear of the virus to government managing life in the presence of the virus," Shirkey said.  

Michigan Republican Party Chairwoman Laura Cox said the ruling marked "a great day for the people of Michigan."

"Gov. Whitmer overexerted her powers," Cox said. "The Legislature wants to be a willing partner in dealing with COVID-19, and Governor Whitmer should recognize their duly delegated role.”

The Michigan Democratic Party said it was disappointed in the ruling and used it as an opportunity to promote the election campaigns of Democratic-nominated Chief Justice Bridget McCormack, an incumbent, and Elizabeth Welch.

“Today's decision was handed down by a narrow majority of Republican justices who appear to be playing partisan politics with our lives,” party chairwoman Lavora Barnes said.

U.S. Paul Mitchell, R-Dryden, filed a similar lawsuit in federal court challenging Whitmer’s emergency powers earlier this year. He said the justices’ ruling Friday was appropriate.

“From the outset, when the governor went beyond her initial orders — which I think were responsible to do to save our health care system from being overwhelmed — she kept going and that it did violate the state constitution and federal constitution,” Mitchell said.

He was unclear how the Supreme Court’s ruling would affect his lawsuit, which is pending.

“I’ve argued all along that if you explain to people the nature of the concern — how they keep themselves and those around you healthy — most people will do the right thing,” Mitchell said. “And you simply avoid those who choose to be ignorant and flout what’s basic science. It’s a highly infectious virus. You can do that without issuing orders like some military institution. We have constitutional rights that the governor seriously abridged with her orders.”

As to Whitmer’s response to the ruling, Mitchell said he was “dismayed and, frankly, astonished that despite a Supreme Court decision that says her exercise of those powers is unconstitutional, she claims she can find some workaround about that and continue.”

“Whatever happened to the rule of law? Whatever happened to separation of powers? I’m disgusted,” Mitchell added.

In a Twitter post, U.S. Rep. Rashida Tlaib, D-Detroit, said the ruling demonstrates why Michigan voters should choose McCormack and Welch for seats on the state's top court next month. 

"@GovWhitmer  took bold action to keep us safe during this pandemic. The GOP appointees on the MI Sup Ct struck down her actions," Tlaib wrote. "It’s clear they don’t care a bit about our lives or our well-being. That’s why we must elect Welch & re-elect Chief Justice McCormack to the court."

Case rooted in medical center suit

Three medical centers filed suit against Whitmer in federal court earlier this year in a challenge to her executive order that prohibited nonessential procedures at the height of the pandemic.

The suit argued the 1945 Emergency Powers of Governor Act lacked reference to epidemics or public health and that the act's use of the word "emergency" implied a specific time limit. 

Lower courts have previously interpreted the 1945 law as giving the governor the ability to declare an emergency and then determine when the emergency is over.

It's one of two laws that allow a Michigan governor to declare an emergency. The 1976 Emergency Management Act includes a time limit that requires the legislative approval to extend an emergency past 28 days.

The suit from the medical centers closely aligned with litigation filed by the GOP-led Michigan Legislature, which has argued Whitmer's unilateral powers violate the separation of powers in government.

The governor's emergency powers should last only as long as it takes for the Legislature to assemble itself to address the emergency, argued lawyers for the GOP Legislature and the Mackinac Center for Public Policy, the group representing the medical centers.

Deputy Solicitor General Eric Restuccia, who represented the governor in the case, countered that Whitmer's unilateral authority is necessary to ensure the governor can continue to act in the event that an emergency prevents the Legislature from holding session or makes it impractical to wait for lawmakers to go through the lawmaking process.

The state high court only considered the arguments of the medical centers after federal district Judge Paul Maloney requested they rule on the question of Whitmer's emergency powers before he decided on the merits of their case. 

Separately, a petition initiative drive led by the Unlock Michigan committee filed more than 500,000 signatures Friday in an attempt to repeal the 1945 law at issue in the case.

Whitmer first declared a state of emergency because of COVID-19 on March 10. As of Friday, Michigan had 126,358 confirmed coronavirus cases and 6,788 COVID-19 related deaths. 

eleblanc@detroitnews.com

Staff Writers Jennifer Chambers and Mark Hicks contributed.