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Letters: Partisanship, Michigan's Supreme Court and Gov. Whitmer's unconstitutional orders

The Detroit News

The response to the Michigan Supreme Court’s recent decision involving the Emergency Management Act of 1976 and the Emergency Powers of the Governor Act of 1945 has been sadly predictable: Much partisan heat, scant legal light.

Briefly, all seven justices agreed that the governor had violated the EMA, and four justices agreed that the Legislature in 1945 had given too much of its authority away in the EPGA. I will not defend or attack the various opinions here, that is for another day. In fact, I encourage you to ignore the political pundits and read all of the opinions for yourself; they are well-written and offer excellent civics lessons.

Here, I simply want to defend the judiciary. In response to an attack by the president awhile ago, it was right for the chief justice of the United States Supreme Court to say, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.”

Similarly, it is right to say in response to recent attacks on both the four-justice majority and three-justice dissent of our state Supreme Court (as well as attacks on other state judges): “We do not have Snyder judges or Whitmer judges, Granholm judges or Engler judges, Republican judges or Democrat judges. We simply have judges who do their level best to apply the law to the facts.” Full stop.

I ask that my fellow candidates for the Supreme Court publicly join me in this defense of our judiciary.

Brock Swartzle, candidate for Michigan Supreme Court

All seven justices agreed that the governor had violated the EMA, and four justices agreed that the legislature in 1945 had given too much of its authority away in the EPGA, Swartzle writes.

Don't expect Whitmer to give up power now

For the past several months, Gov. Gretchen Whitmer has stood on shaky legal ground as she aggressively exercised her executive powers. Claiming unprecedented authority under the Emergency Powers of the Governor Act of 1945, she issued scores of executive orders regulating virtually every area of our lives from whether we could work, travel, shop, go to school, see our dentist, eat at a restaurant or get a haircut.

All along our governor made it clear that she (and only she) would decide when our state was no longer under an emergency.

Now the Michigan Supreme Court has spoken, and unsurprisingly Whitmer has lost. According to our Supreme Court, the EPGA is unconstitutional and Whitmer’s executive orders after April 30 are invalid. 

If you were hoping the Supreme Court’s decision would bring an end our governor’s one-person rule, don’t bet on it. Immediately following the Supreme Court’s decision, rather than expressing some humility and a willingness to work with the Legislature, Whitmer was as defiant as ever, calling the court’s decision by a “narrow majority of Republican justices,” “deeply disappointing” and that she “vehemently disagree[d] with the court’s interpretation of the Michigan Constitution.”

She also made the dubious claim that the Supreme Court’s ruling “does not take effect for at least 21 days, and until then, my emergency declaration and orders retain the force of law.”

How unconstitutional orders retain the force of law was not explained. More ominously, she claimed that after 21 days, many of the responsive measures she has put in place will continue under “alternative sources of authority.”

If you were hoping Whitmer’s abuse of power would end with the Supreme Court’s decision, don’t hold your breath.

Buckle up for more claims of unprecedented executive authority ostensibly to protect public health (well beyond any prior use of such authority), with more lawsuits soon to follow.

Brett A. Howell, Grand Blanc

estate planning and elder law attorney