Whitmer says many COVID-19 orders will remain using other options, despite Supreme Court ruling

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

The Michigan Supreme Court on Friday ruled that Gov. Gretchen Whitmer did not possess the legal authority under two laws to extend states of emergency and issue executive orders in response to the COVID-19 pandemic. 

The high court in a 4-3 decision — with the majority composed of all GOP-nominated justices — has thrown the future of the Democratic governor’s coronavirus-era orders into question. The ruling arrives after months of legal battle over her decisions.

Arguments for the case were conducted via Zoom due to safety concerns about the COVID-19 pandemic.

“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,” Whitmer said in a statement. “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 noted the ruling doesn’t take effect for 21 days and said until that point, her ongoing state of emergency declaration and orders are valid. Whitmer also said after 21 days, a number of health and safety protocols she has mandated will continue under “alternative sources of authority that were not at issue” in Friday’s ruling. 

Michigan Supreme Court hears cases challenging gov’s emergency powers

In a 71-page opinion, the court wrote that Whitmer lacked the legal authority to declare after April 30 pandemic-related states of emergency and disaster using the 1976 Emergency Management Act (EMA).

The court also held that Whitmer did not have the authority to use emergency powers under the 1945 Emergency Powers of Governor Act (EPGA) because the act “unlawfully delegates legislative power to the executive branch in violation of the Michigan Constitution.”

All justices on the court agreed that Whitmer did not have authority to execute decisions under the EMA. 

But justices were split about Whitmer’s authority to invoke the EPGA. Lower courts in previous months found that Whitmer did have grounds to use the EPGA during the crisis, and that she should be allowed to decide when an emergency is over. 

Court of Appeals upholds Whitmer’s emergency powers in 2-1 decision

The state Supreme Court said the EPGA is contradictory to the state Constitution because it hands over legislative powers to the executive branch and allows “the exercise of such powers indefinitely.”

The majority decision about the EPGA came from Justices Stephen Markman, Brian Zahra, David Viviano and Elizabeth Clement, who were all nominated by the Republican Party.

The GOP-controlled Michigan Legislature first brought a lawsuit over Whitmer’s emergency powers in May. Top Republicans and their lawyers argued she overstepped her boundaries when she extended a state of emergency without the Legislature’s approval. 

Medical centers also filed suit against Whitmer when earlier this year she decided to limit non-essential medical procedures because COVID-19 cases were high in the state. 

GOP lawmakers file lawsuit to gut Whitmer’s emergency powers

State House Speaker Lee Chatfield (R-Levering) — who filed the Legislature’s aforementioned lawsuit against Whitmer with Senate Majority Leader Mike Shirkey (R-Clarklake) — took to Twitter on Friday to say the court’s decision is a “big win” for the democratic process.

“The governor had no right to extend the state of emergency over the Legislature’s objection,” Chatfield wrote.

The decision comes just hours after Whitmer issued an order enacting health restrictions on the Upper Peninsula because the region has experienced an uptick in COVID-19 cases and hours after the GOP-affiliated campaign Unlock Michigan submitted petition signatures to the state in an attempt to repeal the EPGA.