Emergency lockdown orders issued by Democratic Michigan Gov. Gretchen Whitmer are no longer effective, according to state Supreme Court decisions issued Monday.
On Oct. 2, the court issued a ruling that said the piece of Michigan law Whitmer used to justify her actions was not applicable to support the unilateral extensions of her original emergency declarations. However, because that was, procedurally, in response to a federal judge, the precise impact of the state court ruling was unclear.
While a news release from Whitmer’s office stated the Supreme Court’s ruling was 4-3, the court ruled two ways: a unanimous, 7-0, opinion and a 4-3 opinion along partisan lines.
Attorney Katherine Henry, who has fought the executive orders in court for six months, explained why Whitmer’s extensions of the state of emergency were unlawful.
“Specifically, they said she has no authority, on a 7-0 opinion, no authority to issue these executive orders, according to the Emergency Management Act of 1976. That was the first part and that was the part that was unanimous. That she has zero authority to do this,” Henry told WJBK-TV.
“The second question was whether the Emergency Powers of Governor Act violated the state constitution, namely, separation of powers clause – Article 3 Section 2,” she continued. “What the court said in a 4-3 opinion, in that regard, was that yes, the Emergency Power of Governor Act of 1945 is entirely unconstitutional. So therefore The governor has no way to rely on that to act on our behalf.”
The uncertainty was settled Monday when the court issued another 4-3 ruling in response to the lawsuit from Michigan’s Legislature that also found Whitmer was not allowed to use the 1945 Michigan law as the foundation for the series of executive orders she issued, according to the Detroit Free Press.
“Executive orders issued under that act are of no continuing legal effect,” the court said. “This order is effective upon entry.”
Whitmer was also on the short end of another 6-1 ruling Monday that was a follow-up to its Oct. 2 ruling. The court, reflecting the ruling in the suit filed by the Legislature, rejected Whitmer’s request to keep all of her emergency edicts in effect until Oct. 30.
The court’s decision “leaves open many avenues for our governor and Legislature to work together in a cooperative spirit and constitutional manner to respond to the COVID-19 pandemic,” the order said.
Republican House Speaker Lee Chatfield praised the ruling.
“Another big win at the Supreme Court today!” Chatfield said on Twitter. “The law is the law, and partisan politics can’t change that. The people will finally have their voices heard in this process. The House is in again tomorrow, and I hope the Governor is ready to cooperate. It’s time to work together!”
Another big win at the Supreme Court today! The law is the law, and partisan politics can’t change that. The people will finally have their voices heard in this process. The House is in again tomorrow, and I hope the Governor is ready to cooperate. It’s time to work together!
— Lee Chatfield (@LeeChatfield) October 12, 2020
However, some of the restrictions that were imposed by Whitmer have been put in place through the state’s bureaucracy.
Robert Gordon, director of the state Department of Health and Human Services, on Friday issued an order requiring masks at any public gathering attracting two or more people for most places in the state. The order also restricts the number of people who can be in stores or restaurants at one time.
MDHHS issued an epidemic order mirroring executive orders previously issued to prevent the spread of #COVID19. Learn more about the order with this new infographic: https://t.co/iNaVFvycVf. pic.twitter.com/mlKbXt97l1
— Michigan HHS Dept (@MichiganHHS) October 9, 2020
The new allows bars to open, but patrons must be sitting down and remain 6 feet apart.
Although those orders were not covered by the lawsuit, they are being examined.
Patrick Wright, vice president for legal affairs at the Mackinac Center for Public Policy, said that although the rulings “affirmed that the court’s decision is now law, the governor is continuing to sidestep the ruling by maintaining unilateral control over pandemic policies via broad and poorly defined powers granted in statute to a state department.”
“We are currently looking at the legality of the governor’s latest actions,” Wright said.
The initial ruling had said no single individual should have the vast power Whitmer has wielded.
“Although singular assertions of governmental authority may sometimes be required in response to a public emergency — and the present pandemic is clearly such an emergency– the sheer magnitude of the authority in dispute, as well as its concentration in a single individual, simply cannot be sustained within our constitutional system of separated powers,” the opinion said.
Whitmer said in a statement on Oct. 2 that the Supreme Court’s ruling was “deeply disappointing.”
“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,” she said.
UPDATE, Oct. 14, 2020: This article has been updated to include additional information about the Michigan Supreme Court’s Oct. 2 ruling that many of Gov. Whitmer’s coronavirus emergency orders are illegal.
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