Michigan Supreme Court strikes down Whitmer’s covid executive orders

The Michigan Supreme Court has ruled that Gov. Gretchen Whitmer had no authority to issue or renew executive orders relating to the Wuhan coronavirus after April 30. Whitmer extended the state’s coronavirus emergency declaration by executive order of April 30, after the Republican-controlled legislature advanced a bill that would not have renewed the original declaration.

Whitmer relied on two laws — the Emergency Management Act of 1976 (EMA) and the Emergency Powers of the Governor Act of 1945 (EPGA) — as authority for her action. However, the state Supreme Court ruled that she did not possess authority under the EMA to re-declare a state of emergency or disaster based on the pandemic and that the EPGA was an “unlawful delegation of legislative power to the executive branch in violation of the Michigan Constitution.”

The Court’s opinion was written by Judge Stephen Markman, a distinguished conservative jurist. The opinion states: “Our decision leaves open many avenues for the Governor and Legislature to work together to address this challenge [of the pandemic] and we hope that this will take place.” (Emphasis added)

This, indeed, is how the challenge should be addressed — by both political branches of the state working together to balance important competing interest. There is a middle ground between blowing off the pandemic as nothing requiring a preventative governmental response, on the one hand, and arbitrarily shutting down the economy for month after month, on the other.

Whitmer never found a middle ground. She does not appear to have looked. If she works with the legislature, as she now must to impose restrictions, maybe she will find one.

The Department of Justice filed a statement of interest in the case. The DOJ’s statement explained that the governor’s coronavirus orders raised constitutional concerns by imposing what appeared to be arbitrary and unreasonable limits on how, and ultimately whether, certain businesses could operate in Michigan relative to other similarly situated businesses. The statement of interest also explained that the federal Constitution provides for a cohesive national economy for all 50 states and all Americans and that the governor’s orders may be unduly interfering with interstate commerce.

On receiving news of the Michigan Supreme Court’s decision, Eric Dreiband, the Assistant Attorney General for Civil Rights, said:

Today’s decision by the Michigan Supreme Court is a victory for all Michiganders and the rule of law. The United States Constitution guarantees a republican form of government to every state in our free country. The Constitution does not permit any public official unlawfully to restrict our liberty. All public officials must respect the right of the people to govern themselves at all times, especially during a crisis’