Governor’s COVID-19 Emergency Orders Deemed Unconstitutional

Since May 1, the Michigan legislature could have—and according to the Michigan Supreme Court—should have been involved in the decisions being made on how to best protect residents from the spread of the coronavirus.

Democratic Gov. Gretchen Whitmer originally declared a state of emergency March 10, 2020. It remained in place after multiple extensions until Friday’s decision by the Michigan’s highest court, declaring orders made without the Republican-weighted legislature as unconstitutional.

“The court has restored the voices of 10 million Michiganders by reaffirming the constitutional protections of checks and balances afforded through the separation of powers,” said Patrick Wright, vice president for legal affairs at the Mackinac Center for Public Policy and director of the Mackinac Center Legal Foundation. “This important decision was long in the making, but now future COVID responses will have the benefit of including the people’s representatives through the legislative process. As our state continues to face the challenges that come with COVID-19, all of the people of Michigan will have a voice in the decisions that will impact our state in the years to come.”

Two separate decisions were issued Friday. 1) The governor lacks the power to issue executive orders in response to COVID-19 without the involvement of the Legislature, and 2) In a 4-3 decision, the court declared the Emergency Powers of the Governor Act of 1945 unlawful, which was the executive branch’s primary citing for unilateral decision-making.

The orders range from mandatory testing for healthcare and prison workers to required funeral director reporting to businesses requiring and enforcing masks. The orders were also used to keep previous executive orders in place as time limits neared.

“Today’s Supreme Court ruling, handed down by a narrow majority of Republican justices, is deeply disappointing,” said Gov. Whitmer in an Oct. 2 statement. “I vehemently disagree with the court’s interpretation of the Michigan Constitution. Right now, every state and the federal government have some form of declared emergency. With this decision, Michigan will become the sole outlier at a time when the Upper Peninsula is experiencing rates of COVID infection not seen in our state since April.”

The case was originally filed in May by the Mackinac Center Legal Foundation, in conjunction with the Grand Rapids-based Miller Johnson law firm. It was on behalf of three medical practitioners who were unable to provide necessary care and a patient who was unable to receive care under the governor’s emergency executive orders.

Grand Health Partners, Wellston Medical Center and Primary Health Services were among the healthcare facilities across Michigan initially prevented from performing elective procedures like endoscopies and surgeries. Their patients experienced heart attacks and depression, according to the Mackinac Center. Jeffery Gullick, the patient in the suit, faced “excruciating pain” after being forced to postpone a knee surgery.

“We’re thankful for the rule of justice and that we can put patients first, like we’ve been trained and desire to do,” said Dr. Randall Baker, a plaintiff in the case. “It’s a great day for the people of Michigan.”

In the decision, the justices unanimously held that Gov. Whitmer acted illegally by declaring a state of emergency under the Emergency Management Act of 1976. The law requires the Legislature to approve extending emergencies after 28 days, and Gov. Whitmer illegally attempted to bypass that requirement.

Moving forward, Gov. Whitmer will need to work with the representatives and senators through the normal legislative process to issue policies related to COVID-19.

All executive orders issued after April 30 are null and void, pending an almost certain rehearing request from the governor and other state officials. {eoa}