Gov. Whitmer's unilateral extension of COVID-19 state of emergency deemed illegal and unconstitutional by Michigan Supreme Court
Back in May, Governor Whitmer unilaterally extended her state of emergency powers without the approval of the legislature. In addition, she also signed an executive order that prohibited any “non-essential” medical practices. Our clients, three medical practices and one patient, were unable to schedule important medical procedures during this time, leading to extraordinary loss.
CASE UPDATE: On Oct. 2nd, 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.
Since declaring a state of emergency in March 2020, Governor Whitmer has taken drastic executive action to address the spread of COVID-19. In an effort to “flatten the curve” and not overwhelm Michigan’s healthcare system, the governor barred medical practices across the state from providing necessary care, and patients from receiving or scheduling important surgeries. She also unconstitutionally gave herself unprecedented unilateral power to extend her own state of emergency, a move that was harmful to Michiganders across the state.
One of the affected medical practices, Grand Health Partners, operates in the Grand Rapids area. It performs endoscopies and other elective surgeries, many of which were deemed nonessential by executive order. Due to the shutdown, many of their patients were not able to receive treatment and have suffered because of it. One patient was forced to postpone a gallbladder surgery and developed gangrene, another was denied a surgery to repair a damaged feeding tube. The practice also had to furlough most of their employees during the shutdown, unable to support them with the decreased number of patients.
Wellston Medical Center and Primary Health Services, the two other practices in the lawsuit, have experienced similar challenges. Jordan Warnsholz, a physician's assistant and owner of both practices was unable to see his patients during this time. This led to heart attacks, depression, and even suicide attempts by some of his patients due to being unable to be seen in person.
Another plaintiff, Jeffery Gulick, was scheduled to have a knee surgery, but it was delayed due to the executive orders. He also could not receive follow-up care for previous surgery. He was in excruciating pain and unable to receive pain medication needed to aid in recovery.
The Mackinac Center Legal Foundation filed a preliminary injunction request on May 18, 2020. The injunction sought an immediate order from a judge to block the governor's executive orders. The stopping of medical practices all over Michigan was causing irreparable harm to providers and their patients and a decision was needed as soon as possible.
On May 21st, Governor Whitmer announced that she was lifting her ban on nonessential medical procedures beginning May 29th. The governor’s policy reversal in the wake of the Center’s legal pressure was a positive step forward, but the fight was not over.
The ban on nonessential medical procedures was lifted, but the case’s argument against the governor’s use of emergency powers remained relevant.
Patrick J. Wright, vice president for legal affairs for the Mackinac Center for Public Policy, and Mackinac Center Legal Foundation client Jordan Warnsholz on Fox and Friends on September 9, 2020.
On June 30th, the Michigan Supreme Court announced that it planned to hear the case in oral arguments on September 2nd. The Mackinac Center Legal Foundation asserts that Gov. Whitmer violated the law by unilaterally extending her state of emergency without the approval of the legislature. Michigan law requires the state legislature to approve such extensions, but the governor has continued ahead without approval.
This action sets a dangerous precedent for the state executive, and greatly diminishes the power of checks and balances through the legislature. Michigan is a large and diverse state that benefits from having decisions made by a legislature that is elected by the people. When a governor takes complete unilateral control of the state, they ignore the separation of powers and put countless Michiganders at risk.
The Michigan Supreme Court heard the case in an oral argument on September 9th, and said they would issue a decision in the coming weeks or months. The Mackinac Center Legal Foundation specifically challenged whether Gov. Whitmer violated the Michigan Constitution by unilaterally extending her state of emergency.
On Oct. 2nd, 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.