Judge: Whitmer has authority for emergency orders, calls GOP arguments ‘meritless’

Gov. Gretchen Whitmer gives an update on COVID-19 | Gov. Whitmer office photo

A Michigan Court of Claims judge on Thursday ruled in favor of Gov. Gretchen Whitmer in a case brought by the GOP-led Legislature, who aimed to curb her use of emergency powers during the COVID-19 pandemic.

Court of Claims Judge Cynthia Stephens dismissed the suit. In a 25-page opinion, she wrote the governor retains the authority to issue executive orders and extend states of emergency under the Emergency Powers of Governor Act (EPGA), a 1945 law. The Legislature’s challenge to Whitmer’s authority of issuing executive orders is “meritless,” Stephens wrote. She reaffirmed the law’s constitutionality.

However, the governor did not have the authority to re-declare a state of emergency under the 1976 Emergency Management Act (EMA), Stephens noted. 

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In response to the ruling, Whitmer’s office said the governor’s decisions during the COVID-19 pandemic have been lawful. 

“Today’s decision recognizes that the Governor’s actions to save lives are lawful and her orders remain in place,” the statement read. “She will continue to do what she’s always done: take careful, decisive actions to protect Michiganders from this unprecedented, global pandemic. We owe it to our front line heroes who have been putting their lives on the line to pull together as a state and work as one team to stop the spread of this virus.”

In a statement, Michigan Attorney General Dana Nessel said her office is still reviewing the opinion, but she is pleased with how the court handled the case.

“With this clarity, it’s my hope that our public officials and residents can move forward with confidence that the Governor has acted in accordance with the authority provided to her under the Emergency Powers of the Governor Act,” Nessel said in the statement. “It’s time for us all to focus on the health and safety of the People in this State rather than fighting against each other in unnecessary legal battles in our courts.”

But state Senate Majority Leader Mike Shirkey (R-Clarklake), one of two lawmakers to announce the lawsuit against Whitmer, said the Legislature will appeal the decision to the Supreme Court.

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“While we are disappointed by aspects of this determination, we are vindicated in our assertion that the Governor acted unlawfully in attempting to extend the states of emergency and disaster under the Emergency Management Act without legislative approval,” Shirkey said in a statement. “We are confident in our position and will appeal this ruling.” 

The lawsuit was first brought by Shirkey and state Speaker of the House Lee Chatfield (R-Levering) in early May. Whitmer extended Michigan’s coronavirus-related state of emergency from April 30 to May 28, despite the Legislature’s failure to reauthorize it.

The lawsuit sought to challenge the governor’s use of the EPGA and EMA to extend states of emergency without their input. 

A ruling in their favor would have struck down her EOs, something they wanted in order to more quickly reopen Michigan’s economy. In the last few weeks, Whitmer has made several moves to loosen restrictions, including allowing manufacturing and construction industries to restart work.

Here’s the crux of the two laws in question: The 1976 law indicates the Legislature can have input after an initial 28 days. But the 1945 law says a governor maintains authority to decide when to declare a state of emergency over and doesn’t note a timeline for when the Legislature can step in. 

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EO 2020-67 — one of the orders Whitmer issued to make the extension — is a “valid exercise of authority under the EPGA” and the Legislature did not establish any reason to invalidate executive orders resting on it, Stephens wrote in her opinion. Lawyers for the Legislature previously argued Whitmer was too broadly applying the EPGA to back up her authority to issue emergency orders.

Last week, Stephens indicated the case will likely end up before the Michigan Supreme Court.

“You will obviously get something in writing, which will certainly not be the last word,” Stephens said at the close of oral arguments last week. “It’ll be on its way to my big bosses, the Supreme Court.”