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GOP Justices Rule Against Gov On Emergency Powers Used During COVID

October 6, 2020

Gov. Gretchen Whitmer arguably lost her battle Friday to retain power under the 1945 Emergency Powers of Governor Act (EPGA), which a split Michigan Supreme Court (MSC) said violates the Constitution because it purports to indefinitely delegate legislative power to the executive branch.

The court also agreed unanimously to the part of a 48-page opinion from Justice Stephen Markman that held the Governor lacked the authority to declare states of emergency or disaster under the 1976 Emergency Management Act (EMA) after the Legislature said no on April 30. 
 
But Whitmer said Friday night the COVID-19 declarations remain in effect for at least 21 days and after that, “many of the responsive measures I have put in place to control the spread of the virus will continue under alternative sources of authority that were not at issue in Friday’s ruling.” Whitmer’s office did not elaborate on what those measures may be. 
 
Whitmer said the ruling was “handed down by a narrow majority of Republican justices” and was “deeply disappointing. ” The Governor – an attorney by trade – said she “vehemently” disagrees with the court’s interpretation of the constitution. 
 
“Right now, every state and the federal government have some form of declared emergency,” the Governor said. “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.” 
 
The Governor said, “I want the people of Michigan to know that no matter what happens, I will never stop fighting to keep you and your families safe from this deadly virus.” 
 
The majority’s opinion held Whitmer “only possessed the authority or obligation to declare a state of emergency or state of disaster once and . . . the Governor possessed no authority to re-declare the same state of emergency or state of disaster and thereby avoid the Legislature’s limitation on her authority.” 
 
“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,” Markman, a Republican Gov. John Engler appointment, noted in a footnote. 
 
Justices Brian Zahra and Elizabeth Clement joined Markman while Chief Justice Pro Tem David Viviano concurred with the majority’s conclusion that the certified question should be answered, but he held the EPGA does not allow for declarations of emergency to confront public-health events like the pandemics because “public health” and “public safety” are not synonymous. 
 
“Contrary to the majority, I would conclude that the EPGA does not allow for declarations of emergency to confront public-health events like pandemics,” Viviano wrote. Nonetheless, on the constitutional question, he concluded the Legislature simply may not “‘delegate . . . powers which are strictly and exclusively legislative.'” 
 
The four justices who concluded the 1945 emergency powers law was unconstitutional are all Republican-nominated justices, while the three justices who disagreed are all Democratic-nominated. 
 
Chief Justice Bridget McCormack wrote that “all our precedent (and that of the United States Supreme Court) vindicates the Legislature’s choice to delegate authority to the Governor in an emergency.” 
 
She stated the “majority forges its own path. It announces a new constitutional rule to strike down a 75-year-old statute passed to address emergencies. In so doing, the majority needlessly inserts the Court into what has become an emotionally charged political dispute . . . Breaking new constitutional ground here to facially invalidate the EPGA is unnecessary because there are other judicial remedies.” 
 
Justice Richard Bernstein, who concurred with McCormack, dissented with the majority’s holding that the EPGA is unconstitutional. He said he would “leave to the people of Michigan the right to mount challenges to individual orders issued under the EPGA.” 
 
The ruling came at the request of U.S. District Judge Paul Maloney, who asked the MSC to weigh in on a suit filed by medical centers, led by Midwest Institute of Health. Maloney could use the opinion as he makes rulings in the federal lawsuit. 
 
The suit challenged Whitmer’s executive orders that the medical facilities claim prohibited them from providing necessary care. The Mackinac Center Legal Foundation, which brought the suit, said in a statement Friday night “the Court has restored the voices of 10 million Michiganders by reaffirming the constitutional protections of checks and balances afforded through the separation of powers.” 
 
Ryan Jarvi, spokesperson for the Attorney General’s office, said they are reviewing the justices’ opinions and “have no further comment at this time.” 
 
The Legislature, which filed a similar suit and has intervened or filed amicus briefs in other suits, also challenged Whitmer’s use of the EMA and EPGA.  
 
House Speaker Lee Chatfield (R-Levering) said Friday it is “a giant win for the people of Michigan and for the democratic process,” adding that “the people of this state have been denied a voice and a seat at the table in decisions that have impacted every facet of their lives and their futures over the past eight months.”  
 
Chatfield added, “the Legislature was there in March and April to work with the governor to improve her executive orders and help keep Michigan healthy and moving forward together. It worked well, just like the authors of our Constitution intended. Months later, we are still ready to work alongside Gov. Whitmer in a bipartisan way to improve the state’s response to this pandemic.” 
 
Senate Majority Leader Mike Shirkey (R-Clarklake), in his response, said, “the courts have ruled in favor of a government system of checks and balances and citizens will benefit the most” and added, “this ruling does not alter our collective responsibility to protect ourselves and others by wearing masks, social distancing, and washing our hands.” 
 
The lower courts had sided with Whitmer in the similar suit she’s facing against the GOP legislative leaders, holding the 1945 law allowed her to declare an emergency and to determine when that emergency stops.

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