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.