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Gov. Gretchen Whitmer has exercised an unprecedented degree of executive authority during the COVID-19 crisis. Some of the actions are clearly justified by the state’s Emergency Management Act and related laws. Other actions clearly exceed the authorities granted by the state Legislature. Gubernatorial actions during times of emergency, especially during the COVID-19 crisis, naturally call on state legislatures to take a serious look at the emergency authorities they granted to governors.

By letting some of Whitmer’s orders expire and by introducing a series of reforms recently, the Michigan Legislature has taken the first steps toward this serious analysis of gubernatorial emergency authority. With these actions, the Legislature is leading a discussion that will happen across the country in the coming months. 

Whitmer and Michigan, of course, are not alone. Governors across the country have exponentially expanded executive authority, with many governors taking more executive actions in the past six weeks than they did in the year leading up to the crisis.

Any analysis of Whitmer’s executive authority must start with the very laws she cited in her orders: Article 5, Section 1 of the Michigan Constitution; the Emergency Management Act of 1976; and the Emergency Powers of the Governor.

These laws are both consistent and contradictory. On the one hand, the Emergency Management Act provides the governor broad authorities, with narrow exceptions. For example, she may “suspend a regulatory statute, order, or rule prescribing the procedures for conduct of state business”; “control ingress and egress to and from a stricken or threatened area”; “suspend or limit the sale, dispensing, or transportation of alcoholic beverages, explosives, and combustibles” and it goes on.

On the other hand, the Emergency Powers limits the governor’s authority to “promulgate reasonable orders, rules, and regulations” believed necessary to protect life and property. Orders must both be reasonable and calculated to protect life and property.

Broadly, Whitmer has used her authority to postpone elective surgeries, extend enforcement of property tax enforcement laws, and extend state income tax filing deadlines. Without a doubt, the exercise of these authorities falls squarely within the law.

But her stay at home and shut down orders, which strictly limit non-essential businesses, are highly suspect, as they do not appear to balance life and liberty. 

The laws also give the governor’s orders “the force and effect of law” and make disobedience or interference with an order a misdemeanor.

Usually, the enactment of criminal laws is the sole purview of the state Legislature. In fact, some courts may determine that these laws allowing the governor to criminalize conduct apart from the Legislature violates the state’s separation of powers provision, for which the Constitution has no exception for emergencies.

The Legislature could reclaim its authority by removing this emergency authority from the governor. Similarly, the Legislature could expressly provide that constitutional limitations on government authority apply to the governor’s emergency orders. In so doing, the Legislature would make it clear that Michigan Constitutional religious liberty and freedom of assembly protections apply even in times of emergencies.

The COVID-19 crisis led to the unprecedented growth of government authority, especially executive authority. Many state emergency management laws were enacted in the 1950s through 1970s — Michigan’s was enacted in 1976 — and are in dire need of reform. By refusing to extend Whitmer’s executive order and authorizing a lawsuit against her, the Michigan Legislature has taken the first critical steps toward reforming laws and protecting the civil liberties of Michigan’s citizens. 

Jonathon Hauenschild is the director of the ALEC Legal Center, where he regularly educates on state legal matters.

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