By Samir Dahman
Last Friday, the Michigan Supreme Court voted 4-3, along partisan lines, that Democratic Governor Gretchen Whitmer’s executive orders in response to the COVID-19 pandemic are effectively invalid. You can read the full 107 page opinion here.
- The Emergency Powers of the Governor Act of 1945 (the “EPGA”) was never constitutional
- When the Michigan Legislature did not extend the Governor’s declaration of a “state of emergency” under the Emergency Management Act of 1976 (the “EMA”) past April 30, 2020, existing executive orders and any subsequent orders became void
- The Michigan Attorney General will no longer enforce executive orders, despite the Governor’s argument that they remain valid for 21 days
- The next step for the Governor would be a request for reconsideration from the same Court that issued the order, which seems futile
- Wearing masks at many Michigan stores and workplaces is still likely required because of redundant orders issued by the Michigan Department of Health and Human Services which were not reviewed by the court
- Local health departments seem to be filling the void by enacting measures similar to the Governor’s executive orders
- Businesses and workplaces can still, and should, require masks for entry and take other COVID-19 reducing measures
Background: Democrat Governor Issues COVID Executive Orders, Which the Republican Legislature Does Not Extend
On March 10, 2020, the Governor declared a “state of emergency” under the EMA and EPGA. The Governor then requested that the Legislature extend the state of emergency and declarations by 70 days. In response, the Legislature adopted Senate Concurrent Resolution 2020-24, extending the state of emergency and state of disaster through April 30, 2020. Thereafter, the Legislature refused to approve any states emergency or disaster while the Governor continued to issue executive orders regarding COVID-19.
Some of the Governor’s orders were controversial, like those permitting purchases at home improvement stores, except purchases of paint, furniture, flooring and plants. Of course, there were armed protests inside the State Capital. So for a time there, things got ugly.
Both Michigan trial and appeal courts upheld the Governor’s executive order. However, when these same orders were challenged in federal court, that court “certified” two questions to the Michigan Supreme Court to answer.
Two Legal Questions Certified to the Michigan Supreme Court
In plain English, these are the two questions that the federal court certified to the Michigan Supreme Court as well as the Michigan Supreme Court’s holding:
- Are the EPGA and EMA constitutional?
The EPGA is not constitutional because it violates the separation of powers and non-delegation clauses of Michigan constitution. Specifically, it delegated to the executive branch the legislative powers of state government and allowed the executive branch to exercise those powers indefinitely.
Since the unlawful delegation of power was not severable from the EPGA as a whole because the EPGA is inoperative when the power to “protect life and property” is severed from the remainder of the EPGA, the EPGA was unconstitutional in its entirety.
The EMA is constitutional.
- Are the governor’s orders under the EPGA or EMA valid after April 30, 2020?
No. The EPGA is unconstitutional. And under the EMA, the Governor only possessed the authority or obligation to declare a state of emergency or state of disaster once and then had to terminate that declaration when the Legislature did not authorize an extension, which happened on April 30, 2020.
Lesson: Executive Branch Powers Only Go Unchecked for a Short Period of Time
This teaches us that executive branch powers (at least in Michigan) may be broad, but ONLY for a short period of time. And if the executive branch wants to have broad power, the legislative branch MUST approve it. Since here, the legislative branch did not approve the extension, it was unconstitutional for the executive branch to continue to exercise broad power.
Great, lesson learned. So now what?
First, for all intents and purposes, the Governor’s state-wide mask mandate, gathering limitations and building capacity limits are gone.
Second, several county and city governments, through their County Health Officials, have passed county and city-wide mandates or advisories. Among the counties included are Ingham, Oakland, St. Clair, Washtenaw and Wayne. This patchwork will lead to more confusion. The solution may be to wear a mask and don’t be in or allow crowds in the state of Michigan.
Recommendation: Take Reasonable COVID-19 Precautions
While Michiganders, business and workplaces may not be legally obligated to follow mask mandates and other COVID-19 reducing laws, we still recommend that people and places of public accommodation take as many measures as feasibly and economically possible to limit the spread of COVID-19. The reason is two-fold: it’s simple and saves lives; and doing so will decrease the chances that someone will sue you for giving them COVID-19. Just like keeping the floors at a grocery store free of slippery fluids is best-practice because someone could fall and sue, so is taking reasonable measure to reduce the spread of COVID-19 for fear of being sued for negligence.
Please reach out to Samir Dahman at firstname.lastname@example.org or 734.707.1882 with any questions about legal issues surrounding COVID-19 in Michigan.