Michigan Supreme Court rules Whitmer lacks COVID-19 emergency powers

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LANSING — A divided Michigan Supreme Court on Friday ruled that Gov. Gretchen Whitmer lacks the power to issue executive orders in response to the coronavirus pandemic without consent from the Legislature.

In a 4-3 decision, the court’s conservative majority ruled that a law Whitmer has cited to continue issuing emergency orders — the Emergency Powers of the Governor Act of 1945 — unlawfully delegates legislative authority to the executive branch in violation of the Michigan Constitution.  

The ruling found the executive orders she has issued are no longer legal. 

"Accordingly, the executive orders issued by the Governor in response to the COVID-19 pandemic now lack any basis under Michigan law," Justice Steven Markman wrote in a majority opinion.

The impact of the ruling wasn’t immediately clear on Friday, in part because it came in response to a federal judge who is weighing a separate but related case about specific orders from the Democratic governor. 

Whitmer said the ruling from a “narrow majority of Republican justices is deeply disappointing.”

“I vehemently disagree with the court’s interpretation of the Michigan Constitution,” Whitmer said in a statement. 

“I want the people of Michigan to know that no matter what happens, I will never stop fighting to keep you and your families safe from this deadly virus.” 

Whitmer contended the ruling doesn’t take effect for 21 days. After that, she said she’ll use “alternative sources of authority” to “control the spread of the virus.” 

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Whitmer did not elaborate, but the state Health Department, which she controls, also has issued orders that remain place and unchallenged and incorporate elements of the governor's directives on masks, worker safety and other business regulations.

Health Director Robert Gordon has signed 19 such orders since March, some of them simply reinforcing Whitmer's executive orders. 

The Supreme Court ruling came just hours after Whitmer exercised her disputed powers, ordering a series of business restrictions in response to surging coronavirus cases in the Upper Peninsula. It’s unclear whether that order now stands.

The order "effectively" invalidates Whitmer's executive orders, "but it may take the formality of further action by the federal court," said Steven Liedel, a government policy attorney at the Dykema law firm.

"The ability [for Whitmer] to move forward and enforce those orders in any meaningful way is going to be affected," said Liedel, who served as legal counsel to former Gov. Jennifer Granholm.  

But Whitmer still has options to address the pandemic, including additional public health orders from the Michigan Department of Health and Human Services.

"Obviously, the Department of Health and Human Services works for the governor, and that would be one option," Liedel said. "I suspect we'll see new actions by  the administration to address some of the issues that had been addressed by the executive orders."

Whitmer has issued more than 180 executive orders related to the coronavirus since mid-March, when she first declared a state of emergency shortly after the first two cases of the virus were discovered in the state. 

The orders touched on multiple facets of life in Michigan, at one point closing restaurants and retail businesses and schools and then limiting capacity, as well as imposing numerous restrictions on nursing homes. The orders also banned evictions and water shutoffs. 

Initially, Whitmer issued the orders with tacit consent from the Legislature, but the Republican majority refused to extend a state of emergency past April 30. 

Since then, she’s renewed the emergency several times and issued 123 orders.   

At issue are two dueling laws that give Michigan governors broad powers during emergencies.

Whitmer has relied on a 1945 law, passed after civil unrest in Detroit, that gives the governor temporary emergency powers during emergencies. But the majority said that law violates separation-of-powers principles.

The law “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,” Markman wrote. “As a consequence, the [law] cannot continue to provide a basis for the Governor to exercise emergency powers.”

A separate 1976 law also allows the governor to declare a state of emergency but requires legislative approval every 28 days. Justices on the state’s highest court ruled unanimously the law did not give Whitmer authority to extend her state of emergency after April 30, when the Republican-led Legislature declined her request for an extension. 

But the three liberal justices on the court objected to the conservative ruling on the 1945 law. 

Chief Justice Bridget McCormack accused the majority of "creating a new constitutional rule to strike down a 75-year-old statute" that the Legislature approved to address emergencies. 

"In doing so, the majority needlessly inserts the Court into what has become an emotionally charged political dispute," McCormack wrote in a dissent. 

"Because our precedent does not support the majority's decision, because I would not make new rules to address a once-in-a-century global pandemic, and because there are many other remedies available to curb executive overreach, I respectfully dissent in part."

The seven-member court consists of four Republican-affiliated justices and three with Democratic ties. It issued the opinion in response to a request U.S. District Judge Paul Maloney, who had asked them to weigh in on the governor’s powers as he considers a federal lawsuit over medical orders she issued earlier this year.

The Michigan Supreme Court has not ruled in a separate lawsuit by the Republican-led state Legislature.  

House Speaker Lee Chatfield, R-Levering, called the ruling a “big win for our democratic process” that will require the legislative and executive branches to work together on the state’s continued response to COVID-19.

“We will now continue our partnership with our governor,” Chatfield said in a statement. “We will work through this challenge as our Constitution requires and as we always have in times past - together.”

In a statement, Michigan Republican Party Chair Laura Cox said “this is a great day for the people of Michigan, while Senate Majority Leader Mike Shirkey, R-Clarklake, said "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."  

Attorney General Dana Nessel, a Democrat,  wrote on Twitter that "while I respect and accept the decision of the court, I fear for the future of our state and for all our residents." 

Whitmer is not the only state governor to lose legal battles over her executive power during the pandemic. 

In Wisconsin, Republican lawmakers successfully sued Democratic Governor Tony Evers’ administration to cancel an April extension of the state’s stay-home orders. In that case, the Wisconsin Supreme Court ruled in May that the stay-at-home order was “unenforceable.” The court ruled Evers’ administration must instead enact COVID-19 policies as administrative rules subject to legislative oversight. 

Now, a conservative law firm in Wisconsin is challenging Evers’ recent extension of the state’s public health emergency, which includes a statewide mask order. The group contends Evers has no power to extend the emergency without legislative consent. That case is pending.

Multiple other governors have been sued over their COVID-19 restrictions. In Minnesota, a judge last month dismissed Republican lawmakers’ lawsuit challenging Gov. Tim Walz’ emergency powers, ruling that Walz “has acted pursuant to the authority delegated to him by the Legislature.”