The Michigan Supreme Court has ruled in a 4-3 decision that a state law allowing the governor to declare emergencies and to keep them in place without input from the state legislature is unconstitutional.
The ruling is a stinging rebuke of Gov. Gretchen Whitmer’s use of the 1945 Emergency Powers of the Governor Act to renew her executive orders extending lockdowns across the state.
Refusing to concede, Whitmer said that she “vehemently” disagreed with the court’s ruling and that even after the court’s decision takes effect, her executive orders will remain in place through “alternative sources of authority.”
The court was unanimous in ruling that a separate law, the 1976 Emergency Act, did not give Whitmer the power, after April 30, to issue or renew any executive orders related to the COVID-19 pandemic after 28 days without Legislative approval, according to the Detroit News.
The suit which led to Friday’s ruling was brought to federal court by The Mackinac Center for Public Policy, whose argument is that the decision ends Whitmer’s executive orders immediately, or, at the very least, as soon as a federal judge uses the ruling to decide the center’s case.
“It’s a matter of when we can get a court to implement it,” said Patrick Wright, vice president for legal affairs at the Mackinac Center.
Even though the order brings an end to the governor’s use of emergency powers without legislative approval, Whitmer argued her powers will remain in place for at least 21 days, an apparent reference to a 21-day period in which the governor can request a rehearing from the Michigan Supreme Court.
“Anybody that is in the courts right now will point to this ruling and should win,” said Wright, referencing other pending lawsuits against Whitmer.
The state’s high court made it clear that the governor and the legislative body should work together to address issues related to the coronavirus.
“Our decision leaves open many avenues for the governor and Legislature to work together to address this challenge, and we hope that this will take place,” Justice Stephen Markman wrote in the majority opinion.
“If there are other laws or administrative regulations the governor can use — be they the Department of Health and Human Services or another agency — those are still in place,” Wright said. But he added those orders could be reviewed to determine whether they overstep the standards outlined in the laws giving the departments that authority.