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Appellate Court Calls Gov’s Actions Under ’45 Law ‘Constitutionally Sound

August 25, 2020

A split state Court of Appeals (COA) panel Friday ruled in favor of Gov. Gretchen Whitmer’s actions taken under the 1945 Emergency Powers Act to combat COVID-19, and further ruled that the 1945 law that doesn’t require legislative sign-off on continuing a state of emergency is “constitutionally sound.”

The 2-1 ruling signed by judges Jane Markey and Kirsten Frank Kelley said Whitmer’s “declaration of a state of emergency, her extension of the state of emergency, and her issuance of related executive orders fell within the scope of the Governor’s authority under the” law known as the Emergency Powers of the Governor Act (EPGA), which has also been called the 1945 law or the Riot Act.

Because of that, the COA panel said it would not address whether Whitmer was allowed to take those same measures under the Emergency Management Act (EMA) from 1976 — which is the law that does require legislative sign-off on an emergency after 28 days — as the COA said the “matters are moot.”

House Speaker Lee Chatfield (R-Levering) took to Twitter to say the House and Senate Republicans who brought the suit will seek appeal to the Michigan Supreme Court (MSC). He said the COA ruled “that as long as it’s the opinion of a sitting governor that there’s an emergency, they can take over complete, unilateral control of the state for as long as he or she decides. No checks on power. No separation of power. This is unconstitutional.”

He added: “Our Constitution is clear, and separation of powers is real. No Governor, Republican or Democrat, can have unilateral control over a state based solely on their judgment. This precedent is extremely dangerous.”

While the Republicans argued Whitmer cannot use the 1945 EPGA to “justify an indefinite statewide emergency,” the majority panel wrote “a declared statewide emergency only ends upon the Governor’s declaration that the emergency no longer exists. That has yet to occur in the instant case.”

Legislative Republicans argue that the 1945 EPGA only allowed for declaration of local emergencies and that only the 1976 EMA applied to statewide emergencies, but the majority COA panel disagreed.

The appellate panel also turned aside the allegation that the EPGA violates the separation of powers clause of the constitution, in that the EPGA “contains standards that are as reasonably precise as the subject matter — public emergencies — requires or permits.”

Further, the judges said the “Legislature, by enacting the EPGA, safely availed itself of the resources and expertise of the executive branch to assist in the execution of legislative policy.”

The standards in the EPGA, the judges wrote, “are sufficiently broad to permit the . . . carrying out the policy of the Legislature with regard to addressing a public emergency but not so broad as to leave Michiganders unprotected from uncontrolled, arbitrary power.”

In observing that the Legislature is arguing their predecessors in 1945 overstepped their bounds in enacting the EPGA, the appellate panel wrote, “we find it more than a bit disconcerting that the very governmental body that delegated authority to governors to confront public emergencies — and holds and has held the exclusive power to change it — steps forward 75 years later to now assert that it unconstitutionally delegated unconstrained authority.”

And with respect to the prospect of ruling Whitmer violated the 1976 EMA, the court said, “it would be entirely pointless” because Whitmer “had the authority to continue the very same state of emergency and issue the very same EOs under the EPGA.”

In a 21-page dissent, Judge Jonathan Tukel said the Governor’s actions violated the EMA and that he would’ve struck down the executive orders at issue. He also said Whitmer’s actions violated separation of powers and he would’ve struck down the executive orders on that, as well, although he said his preference would have been not to reach the constitutional questions involved.

Tukel wrote that the EPGA and the EMA “do not each stand on their own,” and that “in a case such as this involving an ‘epidemic’ . . . the EMA’s 28-day time limit controls” and later added that the “EPGA has no role to play in this analysis.”

According to the majority panel, Tukel wrote, “the Legislature also allowed the EPGA to co-exist, so that the governor could circumvent the 28-day limit on executive action by the governor which the Legislature had just gone to the trouble of enacting. Such an assertion simply makes no sense.”

Kelley is a 2001 appointee of former Republican Gov. John Engler. Markey ran for the Republican nomination for the state Supreme Court in 2012. Tukel is a former Republican Gov. Rick Snyder appointee.

Whitmer spokesperson Tiffany Brown today said the court “handed the governor a complete and decisive win in her efforts to protect the people of Michigan from this once-in-a-lifetime global pandemic.”

The Governor’s chief legal counsel, Mark Totten, said on Twitter that he “couldn’t be more pleased, but remain aghast we’re even having this fight.”

Another Whitmer aide — Jen Flooddirector of legislative and public affairs — also took to Twitter to say, “wouldn’t it be a game changer to have a legislature that was partnering with us . . . In the meantime, the Governor will just keep doing the right thing. And winning.”

House Minority Leader Christine Greig (D-Farmington Hills) said in a statement that the ruling “clearly affirms” Whitmer’s authority and that legislative Republicans’ suit “is nothing more than a distraction that is wasting precious taxpayer dollars on legal fees as our state continues to grapple with significant budget deficits.”

And Michigan Democratic Party Chair Lavora Barnes said in response, “Republicans are wasting taxpayer dollars, time, and resources to try to block the governor’s ability to save lives.”

On the other side of the issue, the Mackinac Center, which is waging a separate suit against Whitmer that has landed in the MSC, said today, “The separation of powers prevents the governor from having unlimited, unilateral and indefinite power. Contrary to the Court of Appeals decision, the Legislature cannot pass laws that effectively amend this doctrine, which is established in the Michigan Constitution.”

All Business Is Essential issued a statement urging the MSC to “curb Whitmer’s authoritarian overreach.”

The latest ruling in the suit filed against by the Governor by the GOP lawmakers comes after the state Court of Claims sided with Whitmer on the 1945 law, but went with the legislative Republicans on their allegations that Whitmer violated the 1976 law.

Chatfield and Senate Majority Leader Mike Shirkey (R-Clarklake) launched the suit against the Governor after they didn’t move on a request to extend the state of emergency.

Whitmer rescinded the old emergency order and declared a new one, and has done so since then, with the current COVID-19 emergency now set to expire in early September.

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