The Michigan Supreme Court issued a split decision late Friday that ruled against Gov. Gretchen Whitmer in a battle over her power to extend emergency declarations used to mandate COVID-19 restrictions over the last five months.
The court's decision throws into question dozens of orders issued by Whitmer related to the coronavirus pandemic, appearing to void them.
“Today’s Supreme Court ruling, handed down by a narrow majority of Republican justices, is deeply disappointing, and I vehemently disagree with the court’s interpretation of the Michigan Constitution. Right now, every state and the federal government have some form of declared emergency. With this decision, Michigan will become the sole outlier at a time when the Upper Peninsula is experiencing rates of COVID infection not seen in our state since April," Whitmer said in a statement late Friday.
“It is important to note that this ruling does not take effect for at least 21 days, and until then, my emergency declaration and orders retain the force of law. Furthermore, after 21 days, many of the responsive measures I have put in place to control the spread of the virus will continue under alternative sources of authority that were not at issue in today’s ruling."
In the 4-3 ruling, the court determined the governor did not have the authority under state law to issue any additional emergency declarations pertaining to the pandemic after April 30. That was the last date when the legislature allowed the governor to declare an emergency.
"The governor’s declaration of a state of emergency or state of disaster may only endure for 28 days absent legislative approval of an extension. So, if the Legislature does nothing, as it did here, the governor is obligated to terminate the state of emergency or state of disaster after 28 days," said the majority opinion, written by Judge Stephen Markman.
The governor relied on her interpretation of the law to broadly mandate business closures, mask requirements, sports restrictions and more. While many of those restrictions have been lifted, many more remain. Just hours before the ruling, the governor determined the Upper Peninsula needed to abide by stricter rules for gatherings and mask due to an uptick of coronavirus cases.
Now, the authority of orders dictating everything from clubs and bars operating at limited capacity to mask mandates for high school athletes are thrown into question.
In part, the ruling essentially determines the Emergency Powers of Governor Act of 1945 — the law people signing petitions are trying to repeal — is unconstitutional because it "constitutes an unlawful delegation of legislative power to the executive"
Whitmer has relied on an interpretation of this emergency powers law passed in 1945 and the Emergency Powers Act of 1976 to issue a litany of executive orders related to the pandemic. The orders mandated the closure of businesses and restricted the number of people allowed to gather at events, all in the name of safety and preventing the spread of coronavirus.
But several parties, including Republican leaders of the majority-GOP state Legislature, argued that the governor overstepped her powers after it refused to extend a state of emergency — as required under one state law for Whitmer to continue to have unilateral authority in issuing orders — and then declare one of her own under the same circumstances which the expired one existed.
“(We) do not believe that the Legislature intended to allow the governor to redeclare … the identical state of emergency and state of disaster under these circumstances,” Markman wrote. He and a majority of the judges also ruled that another law passed in 1976 delegating emergency powers to the governor was overly broad, saying it "constituted an unlawful delegation of legislative power to the executive."
The majority of the court also ruled that although the 1945 law afford the governor broad authority to act, it unconstitutionally gave the executive powers that should only reside with state lawmakers.
In short, the court determined the law is unconstitutional because it allows the executive branch of government to do something that only the legislative branch is supposed to do.
"Put simply, and our criticism is not of the Governor in this regard but of the statute in dispute — almost certainly, no individual in the history of this state has ever been vested with as much concentrated and standardless power to regulate the lives of our people, free of the inconvenience of having to act in accord with other accountable branches of government and free of any need to subject her decisions to the ordinary interplay of our system of separated powers and checks and balances, with even the ending date of this exercise of power reposing exclusively in her own judgment and discretion," the majority 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."
Legislative and state Republicans heralded the decision. House Speaker Lee Chatfield, R-Levering, called the ruling a giant win for the state.
“The people of this state have been denied a voice and a seat at the table in decisions that have impacted every facet of their lives and their futures over the past eight months. They deserve to have their representatives bring their voice and their concerns into this decision-making process," Chatfield said in a statement late Friday.
"The Legislature was there in March and April to work with the governor to improve her executive orders and help keep Michigan healthy and moving forward together. It worked well, just like the authors of our Constitution intended. Months later, we are still ready to work alongside Gov. Whitmer in a bipartisan way to improve the state’s response to this pandemic."
Michigan Republican Party Chairwoman Laura Cox said the ruling makes for a great day for the state.
"The court rightly recognized that the constitution gives the Legislature a role to represent the people of this state," she said. "Governor Whitmer overexerted her powers. The legislature wants to be a willing partner in dealing with COVID-19 and Governor Whitmer should recognize their duly delegated role.”
The fight over Whitmer's authority to issue orders, including those requiring Michiganders to wear masks and stay at home as much as possible at the height of the outbreak in spring, led to protests in Lansing and President Donald Trump issuing a post on Twitter at one pointing calling to "Liberate Michigan." The state Supreme Court order came the same day Trump announced he had tested positive for coronavirus. Whitmer's actions, meanwhile, have largely been supported by state residents, according to polls.
Her actions, however, also prompted several efforts to get people to sign petitions in order to repeal the laws cited by the governor. One initiative, Unlock Michigan, garnered more than 500,000 signatures but is under investigation by the attorney general after video evidence showed potentially illegal means of collecting signatures.
It is has been a huge mess here with nearly a new executive order from Comrade Whitmer almost daily. Many of these are confusing and contradictory. She has banned effective treatments. She committed mass murder by ordering nursing homes to take infected patients causing thousands of deaths of vulnerable seniors.
This has been too long coming.
Today we learned that the Attorney General (bought by Soros) will investigate the group behind "Repeal 45". She will do her best to find or invent laws they broke to gather signatures. They will before the Election Commission challenge everything they can to delay the approval as much as possible.
So without the Michigan Supreme Court action, we Michiganders were going to suffer ever changing daily Executive Orders. Comrade Whitmer had no plan or desire to end her totalitarian rule. This "emergency" was going to continue as long as she was Governor.