Michigan Supreme Court hears cases challenging gov’s emergency powers

Gov. Gretchen Whitmer gives an update on COVID-19, March 20, 2020 | Gov. Whitmer office photo

Michigan Supreme Court justices on Wednesday heard oral arguments for two legal cases that challenge Gov. Gretchen Whitmer’s use of two key statutes to declare a state of emergency and issue executive orders during the COVID-19 crisis. 

The seven justices on the high court heard from attorneys representing the Republican-led state Legislature, the governor’s legal counsel and counsel representing Michigan medical providers. 

Arguments lasted nearly four hours and were conducted via video teleconferencing software Zoom.

Led by Republican leaders, the Legislature filed one case against Whitmer in May. Michigan medical providers brought another case against Whitmer, Michigan Attorney General Dana Nessel and state Department of Health and Human Services (DHHS) Director Robert Gordon in that same month.

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Whitmer has frequently invoked the 1945 Emergency Powers of Governor Act (EPGA) and occasionally the 1976 Emergency Management Act (EMA) to issue dozens of emergency orders during the pandemic. At issue is also Whitmer’s ability to declare and continue a state of emergency in Michigan without the state Legislature’s approval. 

Governors can declare a state of emergency if they believe a disaster or imminent threat exists that requires activation of the state’s applicable relief forces. 

The 1976 law indicates the Legislature has input on whether or not to continue a state of emergency after it spans an initial 28 days. But the 1945 law doesn’t note a time limit on how long a governor can continue a state of emergency and doesn’t note a timeline for when the Legislature can step in.

Amy Murphy, a lawyer representing medical provider plaintiffs, argued that the EMA, not the EPGA, is more appropriate to use in governing during the COVID-19 because it specifically includes epidemics as a form of disaster.

In back-and-forth with Justice David Viviano, Michigan Deputy Solicitor General Eric Restuccia — who represented the governor — pushed back on the idea that the EPGA is not public health-focused because it does not mention epidemics, saying public health crises could be constituted as a disaster.

The Michigan Legislature could repeal Whitmer’s emergency powers. And she can’t veto the law.

State Senate Majority Leader Mike Shirkey (R-Clarklake) and House Speaker Lee Chatfield (R-Levering) announced in May the Legislature would sue Whitmer after she extended Michigan’s state of emergency without the Legislature’s approval. They said Whitmer’s declarations — especially her now-lifted stay-home order — unnecessarily hurt Michigan’s economy.

Both the House and Senate Democratic caucuses have filed briefs supporting the governor.

The Legislature’s legal counsel has argued Whitmer’s use of the EPGA during the COVID-19 crisis sets a dangerous precedent for governors because there is no time limit on those emergency powers. 

Justice Stephen Markman — in conversation with Michael Williams, the attorney who has represented the Legislature since May — asked why the Legislature would implement the EPGA without limitations in the first place.

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“Isn’t the Legislature itself implicated in the controversy here by virtue of its enactment of this law in the first place, a law without temporal limitations and arguably without adequate standards and guidance provided to the executive?” Markman asked. 

The Michigan Court of Claims and Michigan Court of Appeals previously issued opinions in the GOP-brought case and upheld Whitmer’s authority to hand down orders under the EPGA.

In June, U.S. District Judge Paul Maloney certified two questions for the state Supreme Court to answer in the case brought by Michigan medical providers. In that case, medical providers challenged an order by Whitmer temporarily barring non-essential medical services. 

Maloney asked the court to decide whether Whitmer had the authority to issue or renew pandemic-related executive orders under the EPGA and EMA and if those two statutes violate the Michigan Constitution’s separation of powers and non-delegation clause.