High court: Whitmer's orders have 'no continuing legal effect'

Beth LeBlanc
The Detroit News

The Michigan Supreme Court told Gov. Gretchen Whitmer her orders have "no continuing legal effect" and denied her request to delay the effective date of its decision that ruled the law underpinning Whitmer's executive orders was unconstitutional.

The high court's ruling prompted the immediate cancellation of Monday's previously scheduled virtual city council meetings in Flint and Lansing, and put pressure on Whitmer and the Legislature to replicate her orders about allowing online government meetings during the pandemic into state law. 

In a 4-3 decision, the Supreme Court said Whitmer's orders issued under the 1945 Emergency Powers of the Governor Act "are of no continuing legal effect." The majority consisted of Republican-nominated justices Stephen Markman, Brian Zahra, David Viviano and Beth Clement who formed the majority who earlier ruled the 1945 law was an unconstitutional grant of legislative authority to the governor's office.

In a second 6-1 ruling, the high court denied Whitmer's request to delay the end of her emergency orders to Oct. 30 to allow time for the Legislature to develop new replacement legislation. The majority — which included the Republican-nominated justices, Chief Justice Bridget Mary McCormack and Justice Megan Cavanagh — argued the court did not have the authority to grant Whitmer's request.

Neither of Monday's rulings appear to affect Whitmer's authority through the state health department to issue other public health orders related to the coronavirus pandemic.

The Mackinac Center for Public Policy, which represented the medical centers at the center of the federal lawsuit that led to the Oct. 2 ruling, said it was exploring the legality of the Michigan health department's orders.

Monday's rulings "affirmed that the court's decision is now law," said Patrick Wright, vice president for legal affairs for the free-market-oriented Mackinac Center.

But, he said, "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."

The high court's latest rulings clearly did not infringe on the authority of the health department, but it did make it clear that Whitmer's emergency authority in the COVID-19 pandemic is over, said Larry Dubin, emeritus professor of law at University of Detroit Mercy Law School. 

"The majority clearly ruled the delays were not part of their order,” he said. ​

The law governing the state health department's authority to respond to an epidemic has been on the books for decades, stretching back to the Spanish Flu epidemic in the 1910s, said Lance Gable, a Wayne State University associate professor of law. 

"But there are some things in the governor’s orders that are not covered by the health department orders," Gable said, noting unemployment and public virtual meetings may be beyond the department's scope of power.

"At the end of the day, it would have to be the Legislature," he said.

Monday's rulings

The ruling on the effective date of the high court's decision was issued after the Republican-controlled Michigan Legislature asked the court to apply its Oct. 2 ruling to its case, which was separate from a federal judge's request that the Supreme Court declare the constitutionality of the 1945 law for a case he is deciding. 

The Republican-nominated majority said its ruling was effective immediately and left Whitmer's orders with "no continuing legal effect."

"It should again be emphasized," the Michigan court said, that the decision "leaves open many avenues for our Governor and the Legislature to work together in a cooperative spirit and constitutional manner to respond to the COVID-19 pandemic."

Cavanagh, in a dissent joined by McCormack, maintained that the 1945 law was constitutional and argued that the court's order should not be given immediate effect in the Legislature's case. Both are Democratic-nominated justices.

Even with the decision deeming her orders have "no continuing legal effect," Whitmer has developed a backstop.

Since the Supreme Court's Oct. 2 ruling, Whitmer's Department of Health and Human Services has put in place epidemic orders that replace the governor's larger public health policies, such as mask mandates, employee health screenings and capacity restrictions at restaurants. The Legislature is working to pass bills that reinstate unemployment extensions and electronic public meeting allowances issued under the Democratic governor's executive orders. 

In a separate order, the high court ruled 6-1 it could not delay the effective date of the court's decision to Oct. 30, as Whitmer had requested. The court's four Republican-nominated justices were joined by McCormack and Cavanagh.

The way in which the order was issued — in answer to a certified question from a Grand Rapids federal district court — does not provide a way to challenge the ruling in the Supreme Court, McCormack wrote in a concurring opinion joined by Cavanagh. There was no "precedential effect" for the court to delay, she wrote.  

"And even if it were possible for us to grant the relief sought by the defendants, to do so in this case would be a purely academic exercise," McCormack said, given Monday's 4-3 decision on the immediate effect of the Oct. 2 ruling.

The lone dissenter in that case, Justice Richard Bernstein, argued that the court's Oct. 2 order should have never had immediate effect. 

"...a delay here could only allow the governor and the Legislature the time to better prepare for an appropriate transition," wrote Bernstein, a Democratic-nominated justice.

McCormack, Cavanagh and Bernstein did not side with their Republican-nominated colleagues in the 4-3 decision to overturn the 1945 Emergency Powers of the Governor Act. 

But the court did rule unanimously that the governor was unable to extend her emergency authority past April 30 without the approval of the GOP-led Legislature. 

Public meetings in a bind

Monday's decisions appeared to have an immediate effect on some local governments that assumed the continuing legitimacy of Whitmer's orders to continue with virtual government meetings. 

Virtual meetings were allowed under Whitmer's executive orders, but neither the Legislature nor the state health department has created rules to take the place of Whitmer's order. 

Lansing City Council canceled Monday's meeting immediately after the ruling was issued.

"Combined with today’s ruling and absent clarity from the Michigan Legislature, it is not clear we could satisfy the requirements of the Michigan Open Meetings Act virtually," council President Peter Spadafore said in a statement.

The city of Flint followed suit, canceling its Monday electronic meeting because the city "is without authority to continue to hold in electronic meetings."

No doubt tenuous public health arguments could be made to allow the health department to issue orders allowing for electronic meetings, but it might be a step too far for those already sounding the alarm about executive overreach, Gable said. 

"The health department I don’t think has the ability to overturn elements of the Open Meetings Act," he said.

The Michigan House is scheduled Tuesday to consider legislation that would allow government bodies to meet electronically. The Senate is also set to hold session.

In his dissent, Bernstein expressed concern about the looming prospect of discontinued unemployment benefits without Whitmer's order that allowed for extended jobless aid during the pandemic. The governor issued an order allowing another six weeks of jobless aid beyond the standard 20 weeks in a year or 26 weeks. 

"...the governor notes that up to 830,000 active claimants may lose their benefits once this court's opinion takes effect," Bernstein wrote. 

"This represents a significant potential disruption to the livelihoods of the people of Michigan in a time of great public crisis."

The Michigan Legislature is expected to adopt legislation Tuesday that would continue jobless aid promised under Whitmer's executive order, but lawmakers have tie-barred the legislation to a bill that would protect businesses from COVID-19 liability suits. 

The governor said Monday she is hopeful the House will eliminate the tie bar because she opposes the liability legislation.