Michigan Supreme Court strikes down governor's virus orders

Posted at 5:22 PM, Oct 02, 2020
and last updated 2020-10-05 05:25:37-04

LANSING, Mich. (AP) — The Michigan Supreme Court on Friday struck down months of orders by Gov. Gretchen Whitmer that were aimed at preventing the spread of the coronavirus, saying she illegally drew authority from a 1945 law that doesn’t apply.

The court said the law was an “unlawful delegation of legislative power to the executive branch in violation of the Michigan Constitution.”


The decision is an extraordinary development in a monthslong tug-of-war between Whitmer, a Democrat, and the Republicans who control the Legislature who have complained that they’ve been shut out of major orders that have restricted education, the economy and health care.

Justices Stephen Markman, Brian Zahra, Elizabeth Clement ruled, with David Viviano concurring in part, that the governor didn't have the authority to issue a state of emergency after April 30, 2020 under the Emergency Management Act (EMA).

The justices also ruled that the Emergency Powers of the Governors Act, the 1945 law, is unconstitutional "because purports to delegate the executive branch the legislative power of state government – including its plenary police powers.

Chief Justice Bridget McCormack, Justice Richard Bernstein and Justice Megan Cavanagh agreed with the majority saying the governor didn't have the power to issue executive orders after April 30 under the EMA, but disagreed that the EPGA violated the state's constitution.

"I would uphold the EPGA as a valid delegation of legislative authority under our settled jurisprudence," the three justices wrote.

Gov. Whitmer released this statement:

“Since the beginning of this crisis, I have done everything in my power to protect our seniors, small businesses, and first responders from the worst public health emergency in over a century. Thanks to the hard work of millions of Michiganders who sacrificed and did the right thing, we have saved thousands of lives and laid the foundation for a strong economic recovery. But COVID-19 still poses a clear and present danger to the people of Michigan, our economy, and our way of life.
“This virus has now killed more Michiganders than World War I. It is a novel virus for which there is no cure, and which has infected the President of the United States, members of the United States Congress, and Legislators across our state. This virus continues to take the lives of Americans every single day, and without a cure or approved vaccine, that will continue for the foreseeable future.
“Today’s Supreme Court ruling, handed down by a narrow majority of Republican justices, is deeply disappointing, and I vehemently disagree with the court’s interpretation of the Michigan Constitution. Right now, every state and the federal government have some form of declared emergency. 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.
“It is important to note that this ruling does not take effect for at least 21 days, and until then, my emergency declaration and orders retain the force of law. Furthermore, after 21 days, 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 today’s ruling.
“I know this is hard. We all want this crisis to be over, and we all want life to return to normal as soon as possible. But the only way we will get through this is by pulling together as Americans and working as one nation to defeat this virus. That means wearing a mask, washing your hands frequently, and maintaining six feet of physical distancing. Michiganders have grit, and there is no challenge we can’t meet.
“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.”