The court said that the law Gov. Whitmer used to justify her repeated extension of executive orders is itself not constitutional.
The Michigan Supreme Court has found that Gov. Gretchen Whitmer overstepped her constitutional authority by issuing coronavirus-related executive orders without legislators’ approval.
Writing in a 4-3 ruling, the court determined that a longstanding state law which allowing the governor to declare states of emergency and keep them in place without congressional support is unconstitutional.
That law—known as the 1945 Emergency Powers of the Governor Act—has been critical in allowing Gov. Whitmer to repeatedly extend her coronavirus-related state of emergency. First declared in mid-March, the governor has renewed or refreshed Michigan’s state of emergency on a monthly basis ever since.
Furthermore, the justices were unanimous in stating that another law—the 1976 Emergency Management Act—does not give Gov. Whitmer the power to issue or review executive orders related to the pandemic after more than 28 days have passed without legislative input.
“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, on the basis of the COVID-19 pandemic,” Justice Stephen J. Markman wrote on behalf of the majority. “Furthermore, we conclude that the EPGA is in violation of the Constitution of our state because it purports to delegate to the executive branch the legislative powers of state government—including its plenary police powers—and to allow the exercise of such powers indefinitely.”
“As a consequence, the EPGA cannot continue to provide a basis for the Governor to exercise emergency powers,” Markman stated.
MLive.com notes that this particular challenge to Gov. Whitmer’s executive powers arose in May.
Filed by the Mackinac Center Legal Foundation on behalf of four West Michigan-based medical providers and a patient seeking knee surgery, the lawsuit criticized Gov. Whitmer’s decision to “ban” elective procedures in the early stages of the coronavirus outbreak.
A similar lawsuit was filed by Republican leaders in the state legislature; however, that complaint was not taken up by the Supreme Court.
Gov. Whitmer has since criticized the justices’ decision as unnecessary, unhelpful, and blatantly partisan.
“This threat is still very real and the sad irony is on the day that the president was admitted to the hospital with the very virus he called a hoax, the Supreme Court in Michigan undermined my emergency rule, my emergency orders that I’ve had to enact that puts us in the same state as all the other states in this nation, to save lives,” Gov. Whitmer said. “We’ve saved thousands of lives and the Supreme Court, on a slim majority Republican vote, undermined that effort.”
Whitmer said that the justices’ ruling, along with extant state law, will allow her executive orders to remain in place for another 21 days.