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Whitmer: Michigan Supreme Court ruling shouldn't take effect until Oct. 30

Craig Mauger Beth LeBlanc
The Detroit News

Davison — Gov. Gretchen Whitmer's administration is asking the Michigan Supreme Court to clarify its decision to strike down her emergency powers during the COVID-19 pandemic and declare the ruling doesn't take effect until Oct. 30.

Whitmer and Robert Gordon, director of the Department of Health and Human Services, filed a motion on the matter Monday, three days after the high court's decision.

Without the 28-day "transition," Michigan workers and their families could lose unemployment benefits and "critical measures meant to prevent the spread of the COVID-19 virus" would "immediately lapse," the governor's office said in a press release.

Michigan Governor Gretchen Whitmer speaks during a press conference, Wednesday, June 17, 2020.

"We need this transition period to protect the 830,000 Michigan workers and families who are depending on unemployment benefits to pay their bills and put food on the table, and to protect Michiganders everywhere who are counting on their leaders to protect them," Whitmer said.

But House Speaker Lee Chatfield, R-Levering, pushed against the idea of delaying the impact of the Supreme Court's decision, which will force the governor to work more closely with lawmakers. Chatfield told reporters Monday that it was time for a "partnership" between the governor and the GOP-controlled Legislature.

"What was unconstitutional in May is still unconstitutional in October," Chatfield said. "What was unconstitutional last week is still unconstitutional this week."

On Friday, the Michigan Supreme Court unanimously ruled Whitmer had no authority under a 1976 emergency law to extend the state of emergency past April 30 without approval from the Legislature. The governor has issued 123 executive orders since that date under the continued declarations. The orders covered mask requirements, limitations on public gatherings, workplace safety standards and expanding unemployment benefits.

The court split 4-3 in ruling that it was unconstitutional for Whitmer to use a separate law to issue executive orders — the 1945 Emergency Powers of the Governor Act — because it improperly delegated legislative powers to the executive branch. 

"Accordingly, the executive orders issued by the governor in response to the COVID-19 pandemic now lack any basis under Michigan law," Justice Stephen Markman wrote in the majority opinion.

Attorney General Dana Nessel’s office initially told Whitmer’s team that the executive orders would stay in effect for 21 days, the period in which a party could seek reconsideration or a rehearing, Whitmer said during an appearance Monday.

Lawyers for the medical centers that sued the governor have maintained the Supreme Court’s ruling makes Whitmer’s orders immediately unenforceable.

In the motion from Whitmer and Gordon on Monday, they argued the Supreme Court's opinion should take effect "not less than 21 days or more than 28 days" under court rules governing opinions. Also, the court has the authority to "postpone the precedential effect of an opinion," the motion says.

"This would allow for an orderly transition during which some responsive measures can be placed under alternative executive authority and the Governor and Legislature can work to address many other pandemic-related matters that currently fall under executive orders," the motion says.

The lawyers for the plaintiffs in the case that spurred the Supreme Court decision on Friday have said the order is effective immediately.

Any argument about a 21-day stay is immaterial, said Patrick Wright, vice president for legal affairs at the Mackinac Center for Public Policy. The Midland-based center represented the three medical centers whose suit against Whitmer’s emergency powers resulted in Friday’s ruling.

Nessel announced Sunday she would not enforce Whitmer’s executive orders through criminal prosecution, but said she did believe the 21-day delay remained in effect.

“I’m not sure where that is," Whitmer told reporters Monday, referring to the status of the 21-day delay. "And that’s why we’re seeking clarity from the court today,”

Whitmer said the fallout from the Supreme Court is still being “ascertained.”

“We’re studying it to make sure that where we can act we do,” she said.

But she maintained some of her orders — such as mask use — remain in place under rules issued by the Michigan Department of Health and Human Services more than two months ago.

“We know that masks work and it’s on all of us to do our part and to have some personal responsibility to keep ourselves, our families and our economy going,” Whitmer said.

The July 29 order from department Director Robert Gordon incorporated three of Whitmer's executive orders governing mask use, gathering and event sizes and workplace protections.

The order said those rules could be enforced by police officers, prosecutors, the attorney general and are punishable by a fine of up to $1,000. Appeals of the fines would be heard by the Michigan Office of Administrative Hearings and Rules.

The Democratic governor's request comes three days after Michigan's high court struck down her continued use of emergency powers in responding to the COVID-19 pandemic. The landmark decision threw a cloud of uncertainty over the policies that have defined Michigan's response to a virus that's been linked to 6,801 deaths in the state.

"The Supreme Court has spoken, and while I vehemently disagree with their ruling, I’m ready to work across the aisle with Republicans in the Legislature where we can find common ground to slow the spread of the virus and rebuild our economy," Whitmer said Monday. "It’s time for Republicans in the Legislature to get to work and start showing that they are taking this crisis seriously.

Whitmer called on the Legislature to cancel its "October recess."

The Michigan Senate and House each has four session days scheduled for the rest of October. Senate Majority Leader Mike Shirkey, R-Clarklake, said Saturday that he is encouraging fellow senators to keep their schedules "flexible" in case extra session days are needed to replace orders that are no longer valid. 

Likewise, Chatfield said the House "will be coming back and will be partnering" with the Whitmer administration. Lawmakers will work to open the state safely through "data and transparency," he said.

eleblanc@detroitnews.com