MIDLAND, Mich. — In a historic ruling issued today, the Michigan Supreme Court unanimously said Gov. Gretchen Whitmer’s attempt to continue a state of emergency after April 30, 2020, without legislative approval was illegal. Additionally, in a 4-3 decision, the court ruled that the Emergency Powers of Governor Act of 1945, which Gov. Whitmer argued allowed her to maintain unilateral control for an indefinite period, is unconstitutional. All executive orders issued after April 30 are null and void, pending an almost certain rehearing request from the governor and other state officials.
“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,” said Patrick Wright, vice president for legal affairs at the Mackinac Center and director of the Mackinac Center Legal Foundation. “This important decision was long in the making, but now future COVID responses will have the benefit of including the people’s representatives through the legislative process. As our state continues to face the challenges that come with COVID-19, all of the people of Michigan will have a voice in the decisions that will impact our state in the years to come.”
The case was originally filed in May by the Mackinac Center Legal Foundation, in conjunction with the Grand Rapids-based Miller Johnson law firm. It was on behalf of three medical practices that were unable to provide necessary care and a patient who was unable to receive care under the governor’s emergency executive orders. Grand Health Partners, Wellston Medical Center and Primary Health Services were among the health care facilities across Michigan initially prevented from performing elective procedures like endoscopies and surgeries. Their patients experienced heart attacks and depression. Jeffery Gullick is a patient who faced excruciating pain after being forced to postpone a knee surgery.
“We’re ecstatic that the court has ruled in our favor,” said Dr. Randall Baker, a plaintiff in the case. “We’re thankful for the rule of justice and that we can put patients first, like we’ve been trained and desire to do. It’s a great day for the people of Michigan.”
The justices unanimously held that Gov. Whitmer acted illegally by declaring a state of emergency under the Emergency Management Act of 1976. The law clearly requires the Legislature to approve extending emergencies after 28 days, and Gov. Whitmer illegally attempted to bypass that requirement.
The majority of four justices, Justices Markman, Zahra, Clement, and Viviano, then held that the EPGA of 1945 is unconstitutional because it illegally gives the governor overly broad legislative powers. The majority concluded that the EPGA lacked sufficient standards to limit the governor’s authority and maintain a clear separation of powers.
Chief Justice McCormack and Justices Bernstein and Cavanagh dissented from striking down the EPGA as unconstitutional, arguing that standards in the statute limit the governor's power. The majority held, though, that these standards, requiring executive orders to be “reasonable” and “necessary,” fail to “[constrain the governor’s] actions in any meaningful way.”
Moving forward, Gov. Whitmer will need to work with the Legislature through the normal legislative process to issue policies related to COVID-19.
“This victory restores the people’s constitutional right to meaningful representation,” said Joseph G. Lehman, president of the Mackinac Center. “The governor does not have unilateral power for an unlimited time. Now she must include the Legislature in confronting the pandemic. It’s possible to protect lives without depriving the people of fundamental constitutional rights.”
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