Lawyers to justices: Whitmer lacks power to continue state of emergency

Beth LeBlanc
The Detroit News

Gov. Gretchen Whitmer lacks authority to continue a state of emergency without the Michigan Legislature under a 1945 law she is using to issue executive orders, lawyers argued Wednesday before the Michigan Supreme Court. 

The 1945 Emergency Powers of the Governor Act lacks any reference to epidemics or public health, its use of the word emergency implies an "intrinsic time limit" and a separate 28-day time limit in a 1976 law should apply to the 1945 statute, said Amy Murphy, an attorney for the Mackinac Center for Public Policy, a Midland-based research group that is representing medical groups affected by Whitmer's orders. 

"This case is not about the wisdom of the governor’s decisions during this pandemic," Murphy said. "It is instead about the structure of our government.

Murphy and Michael Williams, a lawyer for the GOP-led Legislature, argued the governor's emergency powers should last only as long as it takes for the Legislature to assemble itself to address the emergency. 

"This Legislature has been ready, willing and able to act since the inception of this emergency," Williams said. 

Deputy Solicitor General Eric Restuccia countered that Whitmer's unilateral authority is necessary to ensure the governor can continue to act in the event that an emergency prevents the Legislature from holding session or makes it impractical to wait for lawmakers to go through the lawmaking process.

"The lack of an expressed durational limit in the (Emergency Powers of the Governor Act) does not provide a separation of powers problems," Restuccia said. "It does have a durational limit, and that is the emergency itself."

During a nearly four-hour hearing over Zoom, lawyers including those representing the governor were peppered with questions by Michigan Supreme Court justices over the pivotal cases challenging Whitmer's emergency powers. At issue is whether the Democratic governor can extend her emergency authority indefinitely without the approval of the Republican-controlled Legislature.

Republican-nominated justices hold a 4-3 majority in the Michigan Supreme Court, but lower courts have upheld Whitmer's authority under state law. Mackinac Center officials said Tuesday it is likely the Supreme Court would not reach a decision on the case earlier than three to four weeks from now.

During Wednesday's hearing, Restuccia argued that the Legislature is free to meet and pass laws and, if those are vetoed by the governor, they are free to muster a super majority vote to overrule the veto. 

"This idea that somehow there is no recourse is untrue," he said. 

At several points during the hearing, Justice David Viviano suggested that the public health code put in place prior to 1945 outlined local public health responses to communicable disease, reinforcing the argument that the 1945 law did not encompass epidemics. 

"Are you aware of any time in the past 75 years that this statute has been invoked by a governor to deal with a public health crisis in general or an epidemic in particular?" Viviano said. 

"I don’t have any information on that," Restuccia said.

Justice Richard Bernstein noted he'd lost three people close to him to the pandemic, but questioned Restuccia regarding the length of the emergency and what needed to happen for Whitmer to surrender her emergency powers. 

"Your argument is if the court rules in your favor, that purview and that determination and that decision would be made exclusively by the executive branch, am I correct in my understanding of your answer?” Bernstein said. 

"The buck stops with her," Restuccia answered. 

Justices also asked about Whitmer's MI Safe Start Plan, which lays out a long-term phase-based approach to determine which industries and activities are allowed to continue based on the prevalence of the virus. The plan, Justice Beth Clement said, seemed to be outside the scope of an immediate emergency, said Justice Beth Clement, a GOP-nominated appointee who is considered a swing vote on the court. 

But Justice Stephen Markman questioned Williams about the Legislature's culpability in the passage of the very law the lawmakers are challenging. 

"Isn’t the Legislature itself implicated in the controversy here by virtue of its enactment of this law in the first place, a law without temporal limitations and arguably without adequate standards or guidance provided to the executive?" Markman asked.  

"What is it that the governor's doing that's disrespecting or disregarding the terms of the (Emergency Powers of the Governor Act)?" he asked. 

Williams argued the law had never been extended outside of local emergencies, let alone to the extent it is now being used.

"COVID-19 itself is unprecedented, your honor, but the idea of a statewide crisis or a broader crisis beyond one locality certainly is not," he said.

Whitmer has issued more than 170 executive orders since the start of the pandemic under the 1945 Emergency Powers of the Governor Act and the 1976 Emergency Management Act, the latter of which has a 28-day time limit unless extended by the Legislature.

Lower courts have ruled the governor's authority remains intact without the approval of the Legislature — which refused to extend her authority past April 30 — under the 1945 act because there is no time limit under that law.

Michigan Supreme Court justices (from left) Elizabeth T. Clement, David F. Viviano, Stephen J. Markman, Chief Justice Bridget M. McCormack, Brian K. Zahra, Richard H. Bernstein and Megan K. Cavanagh, listen to a case.

The Legislature has argued that Whitmer effectively "seized" power to make laws and the months-long emergency declaration could set a precedent that allows the governor to operate without elected lawmakers.  

Grand Rapids Federal District Judge Paul Maloney requested the Michigan Supreme Court rule on the question of Whitmer's emergency powers before he decided on the merits of a case brought by three medical centers challenging the governor's order that barred them from providing services deemed non-essential. 

Doctors at those facilities have maintained the order was overly broad and vague, causing them to question which services were essential and delay operations that caused serious complications for some patients. 

Some restrictions remain in place for the medical facilities and the prospect that the stricter controls could be restored if there's a spike caused the medical facilities to continue their lawsuit against the governor. 

The medical centers have argued that the 1945 law should be construed in conjunction with the 1976 law's time limit or the state risks "a giant separation of powers problem" that allows the governor to act unilaterally for as long as he or she desires.

In August, the Court of Appeals ruled 2-1 in the Legislature's case that the 1945 law does not require lawmakers' approval and doesn't violate the separation of powers.

"We find it more than a bit disconcerting that the very governmental body that delegated authority to governors to confront public emergencies — and holds and has held the exclusive power to change it — steps forward 75 years later to now assert that it unconstitutionally delegated unconstrained authority," the majority opinion added.