Whitmer wins another round over executive powers. On to the Supreme Court

Gov. Gretchen Whitmer does indeed have the legal right to continue extending a state of emergency during the coronavirus pandemic without approval from the Legislature, the Michigan Court of Appeals ruled Friday morning.

The 2-1 decision upholds a lower court ruling siding with Whitmer and affirming the constitutionality of the Emergency Powers of the Governor Act, a 1945 law that allows the governor to declare states of emergency unilaterally during times “of great public crisis.” 

Leaders in the Republican-led Legislature have pledged to appeal the ruling to the Michigan Supreme Court. The final decision promises to have a significant impact on Michigan’s political and public health landscape.

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“We hold that the Governor’s declaration of a state of emergency, her extension of the state of emergency, and her issuance of related executive orders fell within the scope of the Governor’s authority under the EPGA,” the Court of Appeals ruling reads. “We further hold that the EPGA is constitutionally sound.”

Whitmer first declared a state of emergency for the coronavirus pandemic on March 10, citing authority under both the 1945 law and a separate 1976 statute that requires lawmakers to sign off on an extension after 28 days. 

Michigan’s GOP-led Legislature filed the suit in May after rejecting Whitmer’s request for a second extension of the emergency declaration amid a dispute over whether to continue the governor’s stringent restrictions intended to curb the spread of the virus. Whitmer declared a new state of emergency under the 1945 law and continued to issue executive orders. 

The Legislature argued that the 1945 law should only be used for local emergencies, not statewide ones. Statewide emergencies, lawmakers contend, must be declared under the 1976 law that requires legislative approval.

In oral arguments earlier this month, lawyers for the Legislature argued that without the check on Whitmer’s powers after 28 days, she can “basically exercise fiat power throughout the state of Michigan for such time as she may determine.”

Whitmer has used the state of emergency to issue more than 160 executive orders related to COVID-19, including requirements for wearing masks in public and the stay-at-home order that ended in June. The coronavirus pandemic has sickened nearly 95,000 Michigan residents and killed nearly 6,400 since mid-March. 

The Court of Appeals determined that “there is no restrictive or limiting language” to indicate the 1945 law should only apply to local emergencies, and that the language of the 1976 law clearly says that it’s not intended to “limit, modify, or abridge” the governor’s powers under the broader 1945 law.

“We, however, are simply not at liberty to question or ignore the Legislature’s informed, intentional decision when enacting the EMA to leave the broad language of the EPGA untouched, fully intact, and operational,” the ruling reads. 

Judges Jane Markey and Kristen Kelly upheld Whitmer’s powers, while Judge Jonathan Tukel sided with the Legislature. All three have Republican ties. 

Legislative leaders immediately promised an appeal to Michigan Supreme Court. 

House Speaker Lee Chatfield, R-Levering, wrote on Twitter Friday that the court “got it wrong… we will now go to the MSC.”

“The Court of Appeals ruled today that as long as it’s the opinion of a sitting governor that there’s an emergency, they can take over complete, unilateral control of the state for as long as he or she decides,” Chatfield wrote in a second tweet. “No checks on power. No separation of power. This is unconstitutional.”

Whitmer’s office lauded the decision, calling it “a complete and decisive win.”

“This decision recognizes that the Governor’s actions to save lives are lawful and her orders remain in place,” Whitmer spokesperson Tiffany Brown said in a statement. “This lawsuit is a dangerous and costly attempt to take away the governor’s power to respond to the COVID-19 emergency and save lives.”

As the battle continues in court, a petition drive to repeal the 1945 law may stand a better chance of restricting Whitmer’s emergency powers. Senate Majority Leader Mike Shirkey, R-Clarlake, said this week that organizers have already collected 200,000 of the 340,047 valid voter signatures required to advance the initiative to the state Legislature.  

A recent poll showed that a slight majority of Michigan voters oppose the “Unlock Michigan” petition, which would give the Republican-dominated Legislature the opportunity to repeal the 1945 law without Whitmer’s approval. However, only around 8 percent of likely voters would need to sign the petition in order for the initiative to be approved. The group is aiming for 500,000 signatures to avoid any potential legal challenges. 

Reacting to the court ruling Friday on Twitter, Unlock Michigan spokesperson Fred Wszolek expressed confidence: “It’s ok. We have about 500,000 friends who will take care of this.”