On Friday, October 2, 2020 the Michigan Supreme Court issued a 4-3 decision ruling the Emergency Powers of the Governor Act (EPGA) of 1945 unconstitutional and declaring that Governor Whitmer did not have authority to declare the state of emergency beyond April 30, 2020, the last date that the Legislature acted to authorize the declarations. The ruling concluded the 1945 Act violated the Michigan Constitution because it delegated to the executive branch the legislative powers of state government and allowed the executive branch to exercise those powers indefinitely.
The ruling stated, "Under the EMA, the governor only possessed the authority or obligation to declare a state of emergency or state of disaster once and then had to terminate that declaration when the Legislature did not authorize an extension; 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."
Additionally, the State Supreme Court agreed unanimously that the Governor lacked the authority to declare states of emergency or disaster under the 1976 Emergency Management Act (EMA) after the Legislature declined to extend it back in April. The Governor had used the Emergency Powers of Governor Act to extend the state’s emergency status and issue dozens of executive orders related to Covid-19. According to the court, those orders are no longer enforceable as of last Friday.
While the Governor’s office released a statement maintained that the Court’s order does not take effect for 21 days and, during that time, the Governor’s declaration of the state of emergency and all orders pertaining to it continue to have the force of law, the Attorney General’s office announced that it will no longer enforce the Governor’s Executive Orders through criminal prosecution.
“In light of the Supreme Court’s decision on Friday, the Attorney General will no longer enforce the Governor’s Executive Orders through criminal prosecution. However, her decision is not binding on other law enforcement agencies or state departments with independent enforcement authority.” – AG Press Secretary Ryan Jarvi on behalf of MI AG Dana Nessel.
On Monday, October 5, Governor Whitmer and Michigan Department of Health and Human Services (DHHS) Director Robert Gordon filed a motion with the Michigan Supreme Court requesting that the Court clarify that their October 2nd ruling does not take effect until Friday, October 30th.
“We need this transition period to protect the 830,000 Michigan workers and families who are depending on unemployment benefits to pay their bills and put food on the table, and to protect Michiganders everywhere who are counting on their leaders to protect them,” said Governor Whitmer. “The Supreme Court has spoken, and while I vehemently disagree with their ruling, I’m ready to work across the aisle with Republicans in the legislature where we can find common ground to slow the spread of the virus and rebuild our economy. It’s time for Republicans in the Legislature to get to work and start showing that they are taking this crisis seriously. They can start by canceling their October recess and getting back to work. Let’s work together and get this done.”
The Governor will now have to work with the Republican led Legislature in order to issue and extend any declarations of a state of emergency. What’s the State Legislature saying about the ruling?
"A giant win for the people of Michigan and for the democratic process, 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. 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." Speaker of the House Lee Chatfield (R-Levering).
"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 Senate stands ready to work with the Governor. Now is the time for bipartisan action to transition from government operating in fear of the virus to government managing life in the presence of the virus." - Senate Majority Leader Mike Shirkey (R-Clarklake).
As of Monday October 5, the Ingham County Health Department and Oakland County Health Department have imposed countywide emergency mandates related to masks and social distancing. Other localities may follow suit, follow the story as it develops, with in-depth coverage in the Michigan Oil & Gas News.