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Whitmer slams Supreme Court ruling, warns orders could continue

Beth LeBlanc
The Detroit News

Gov. Gretchen Whitmer on Friday slammed a Michigan Supreme Court decision saying she lacked the authority to issue emergency orders past April 30 without the support of the Legislature. 

Whitmer called the 4-3 ruling "deeply disturbing" and a conclusion with which she "vehemently disagreed. 

Gov. Gretchen Whitmer

The ruling found Whitmer had no authority to extend her emergency declaration past April 30 under the 1976 Emergency Management Act, which contained a 28-day time limit without the approval of the Legislature. 

The justices also found the 1945 Emergency Powers of the Governor Act was unconstitutional because it unlawfully transferred powers unique to the legislative branch to the executive branch.

Nearly every state in the nation is under some form of emergency, making Michigan an "outlier" in the United States even as case rates rise in the Upper Peninsula, Whitmer said. 

“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," the governor said. 

She warned the court order doesn't take effect for another 21 days and some of the measures put in place to control the virus can continue under "alternative sources of authority not at issue in today's ruling."

The Department of Health and Human Services has issued several complementary or similar orders that resemble Whitmer's executive orders that seem to be unaffected by the ruling. 

“I know this is hard," Whitmer said. "We all want this crisis to be over, and we all want life to return to normal as soon as possible. But the only way we will get through this is by pulling together as Americans and working as one nation to defeat this virus."

The practical effect of the ruling is that it alerts anyone suing the state over Whitmer's emergency powers that cases reaching the Supreme Court would result in a majority finding the 1976 law unconstitutional. 

It also provides advice to the federal judge who requested the ruling and is currently presiding over the case brought by medical centers against Whitmer. 

The order essentially brings an end to Whitmer's emergency powers without legislative approval, but there are differing takes as to when the practical effect of the ruling would be felt. 

Whitmer has argued her powers will remain in place for at least 21 days, an apparent reference to a 21-day period in which the governor can request a rehearing from the Michigan Supreme Court. 

The Mackinac Center for Public Policy, which brought the suit in federal court that led to Friday's ruling, has argued the ruling effectively ends Whitmer's executive orders immediately. Or, at the very least, as soon as the federal judge uses the ruling to decide the center's case. 

"It’s a matter of when we can get a court to implement it," said Patrick Wright, vice president for legal affairs at the Mackinac Center. 

"Anybody that is in the courts right now will point to this ruling and should win," Wright said, referencing other pending lawsuits against Whitmer. 

The majority opinion made clear that the ruling left Whitmer and the Legislature with a prerogative to work together. 

"Our decision leaves open many avenue for the Governor and Legislature to work together to address this challenge and we hope that this will take place," Justice Stephen Markman wrote in the majority opinion.

The Mackinac Center for Public Policy, which filed the lawsuit challenging Whitmer's powers on behalf of three medical centers, contends the order goes into effect immediately.

But, if the administration files a motion for rehearing, the implementation of the order is paused for 21 days while the Supreme Court considers the motion, said Patrick Wright, vice president for legal affairs at the Mackinac Center. 

The ruling makes moot any of Whitmer's executive orders issued after April 30, which would affect all but seven remaining, Wright said. 

"If there are other laws or administrative regulation the governor can use — be they the Department of Health and Human Services or another agency — those are still in place," Wright said.

But he added those orders could be reviewed to determine whether they overstep the standards outlined in the laws giving the departments that authority.  

The question about broad grants of emergency powers from the Legislature to the governor has come up in several states, said Lindsay Wiley, director of the health law and policy program at American University’s law school.

Part of the problem is that many state statutes don’t specifically authorize social distancing or face mask orders, Wiley said. Instead, governors and other officials have generally relied on broader grants of authority to respond to emergencies or control the spread of disease.

In other states, courts have rejected the argument that broad grants of authority run afoul of the state constitution by delegating too much lawmaking authority from the legislature to the executive branch, Wiley said.  

“In Oregon and other states, the courts have pointed to statutory standards governing the conditions under, which the executive official may declare an emergency or limiting the executive official to orders that are reasonably necessary to address the emergency,” she said.

“But in this case, the Michigan Supreme Court found that those kinds of standards weren’t sufficient to ensure that the governor’s actions comport with what the Legislature intended when it passed the 1945 emergency statute on which her declarations have relied since May.”

She noted that even the Wisconsin Supreme Court, when it invalidated the state health secretary’s orders in May, rejected the non-delegation argument the Michigan Supreme Court found persuasive.

Instead, the Wisconsin court held that the health secretary didn’t follow proper procedures when she issued her stay at home orders, Wiley said.

Staff Writer Melissa Nann Burke contributed