Michigan Supreme Court Rules Against Whitmer on Emergency Powers: Effect Unclear

Whitmer’s Legal ‘Beagles’ are probably hard at work as we speak!

The Michigan Supreme Court issued a split decision late Friday that ruled against Gov. Gretchen Whitmer in a battle over her power to extend emergency declarations used to mandate COVID-19 restrictions over the last five months.

The court’s opinion throws into question dozens of orders issued by Whitmer related to the coronavirus pandemic, appearing to void them. At the same time, however, since the decision came as a response to questions submitted to the court by a federal judge — and not as part of a state case before it — it wasn’t immediately clear what would happen next or when it would take effect.

Whitmer issued a statement denouncing the decision.

“Today’s Supreme Court ruling, handed down by a narrow majority of Republican justices, is deeply disappointing, and 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.”
Gov. Gretchen Whitmer

Whitmer also said in her statement that the ruling would not take effect for at least 21 days, which is the usual length of time a party to a case has to ask the court to reconsider a decision, though it wasn’t clear whether that applied in this case or not. Whitmer added that during that time her orders “retain the force of law” and that even after that, “many of the responsive measures I have put in place to control the spread of the virus will continue under alternative sources of authority that were not at issue in today’s ruling.”

Whitmer did not specify which alternative sources she meant. But Nicholas Bagley, a law professor at the University of Michigan, noted in a tweet Friday that state departments have issued rules and taken actions that essentially mirror some of the requirements included in Whitmer’s orders.

But there seemed little argument that the court had effectively stripped Whitmer of authority she insisted she had to respond to the crisis.

“My opinion would be that it’s binding. Because it’s not a Michigan (state court) case there aren’t going to be any injunctions or the like. But it is a decision of the Michigan Supreme Court…….The existing stay-at-home orders would not be valid… This is going to have quite an impact.”
Robert Sedler
Wayne State University Law School