MIDLAND, Mich. — The Mackinac Center for Public Policy applauds the Michigan Legislature for repealing the Emergency Powers of Governor Act of 1945. Although the Michigan Supreme Court already ruled that the law was unconstitutional — in response to a case brought by the Mackinac Center Legal Foundation — removing it from state statute was prudent and necessary.

The repeal comes after a citizen-led initiative that organized in response to Gov. Gretchen Whitmer’s use of the EPGA to lockdown Michigan during the COVID-19 pandemic. The law allowed governors to declare emergency conditions and grant themselves unilateral authority to create or modify state law throughout the emergency and without any input from the voters’ representatives in the Legislature.

“Events since the Michigan Supreme Court’s decision have shown the necessity of reigning in emergency powers," said Patrick J. Wright, vice president for legal affairs at the Mackinac Center. "Gov. Whitmer indicated she wanted to use it to make unilateral decisions about post-pandemic economic policies and even to overturn laws unrelated to emergencies, such as the state’s third-grade reading law. While the administrative powers given to bureaucrats still need better safeguards, the separation of powers has been strengthened and Michigan is now on a better path.”

Debate around the constitutionality of the rarely used law began after Gov. Whitmer used it to issue executive orders related to the COVID-19 pandemic. The EPGA was created in response to a 1943 riot in Detroit and was mainly used to deal with local and isolated instances of civil unrest during the 1960s. Before the governor’s unprecedented use of the law in 2020, the EPGA had not been invoked in 50 years.

That’s because the Emergency Management Act was passed in 1976 and became the primary method for governors to deal with state emergencies. The EMA grants the governor the same unilateral control during emergencies but requires that the Legislature approve extending these emergency powers beyond 28 days. The EMA remains in statute and provides governors unilateral, but temporary, authority during emergencies.

“Under no circumstances should a governor be able to issue orders for an indefinite period that have the force of law and that result in criminal penalties,” said Michael Van Beek, director of research at the Mackinac Center and author of “A History of Michigan's Controversial 1945 Emergency Powers Law.” “Checks and balances and separation of powers are core principles of a representative democracy and vital for protecting civil rights.”

You can read more about the repeal of the law here.

You can learn more about the Mackinac Center Legal Foundation’s lawsuit victory, Grand Health v. Whitmer, here.

You can learn more about the history of the 1945 Emergency Powers of Governor Act here.