Late last week, the Michigan Supreme Court in a 4-3 vote ruled that emergency orders issued by Governor Gretchen Whitmer after April 30 are effectively unconstitutional. In its decision, the court struck down the Emergency Powers of the Governor Act of 1945 (EPGA) that allowed the governor to declare and sustain a state of emergency without the legislature’s backing.
Since the end of April, the governor has issued over 100 executive orders mandating mask wearing, expanding unemployment and delaying medical procedures, among other things.
In addition to striking down the 1945 law, the court ruled that the governor did not possess proper authority to declare a “state of emergency” or “state of disaster” under the state’s 1976 Emergency Management Act (EMA) on April 30, since the legislature had resolved for her initial state of emergency to end on April 30. According to the EMA, the legislature must be involved in any extension of an emergency past 28 days from the initial declaration.
In the landmark decision, the court’s majority declared that the EPGA is an “unlawful delegation of legislative power to the executive branch in violation of the Michigan Constitution” and that “the executive orders issued by the Governor in response to the COVID-19 pandemic now lack any basis under Michigan law.”
The court delivered its judgment succinctly and without equivocation. Michigan’s Attorney General Dana Nessel followed with a statement that her office “will no longer enforce the governor’s executive orders through criminal prosecution.” Despite this, Whitmer is seeking clarification from the court on the date her powers expire. Her statement in response to the ruling read, in part:
“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….It is important to note that this ruling does not take effect for at least 21 days, and until then, my emergency declaration and orders retain the force of law. Furthermore, after 21 days, 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.”
Here, the governor is partially correct, at least by way of the high court’s ruling. While a slim majority of justices concluded that the EPGA is unconstitutional, all seven agreed that the governor overstepped her authority to continue the emergency declaration under EMA beyond the time period prescribed by the legislature.
The matter of whether the emergency orders have a 21-day transition period before lapsing is described by the governor’s opponents as moot, since the case originated in federal district court.
Three Justices writing for the majority noted that, under the EPGA, the Governor was effectively permitted to wield emergency powers indefinitely since the law merely required a declaration by the governor that the emergency is no longer present. They included that the law did not provide adequate guidance to the governor on how to exercise the authority, “nor constrained the Governor’s actions in any meaningful manner.”
Three other Justices, including Chief Justice Bridget McCormack, agreed that Whitmer’s extension of the state of emergency was unlawful and that the EPGA did not permit the issuance of the governor’s orders but would have stopped short of striking down EPGA, believing that it offered sufficient guidance to using the governor’s emergency powers.
In an interview with The Detroit Press, Patrick Wright, Vice President for legal affairs at the Mackinac Center for Public Policy, responded to Whitmer’s request for a 21-day transition:
“The governor should focus less on trying to extend unconstitutional COVID-19 executive orders and instead focus on enacting new legislation as the Michigan Supreme Court made clear was necessary…What prosecutor, what sheriff, what judge, what court would enforce these orders when the Michigan Supreme Court just said they’re unconstitutional?”
When considering the effects of this decision, it is important to understand that some orders issued in response to the coronavirus pandemic will remain intact due to existing authority through the state’s public health agency. A spokesperson for the Michigan Attorney General clarified the ruling, saying that the decision is “not binding on other law enforcement agencies or state departments with independent enforcement authority.” Soon after, Michigan Department of Health and Human Services reinstated aspects of Gov. Whitmer’s orders regarding masks, limits on gatherings and health protocols for businesses.
Looking to understand how the recent events in Michigan may translate to Maine, aspects of the now-unconstitutional EPGA, including allowing the governor to declare a state of emergency for an definite period of time as long as s/he deems his/her orders “reasonable” and “necessary,” are reminiscent of Maine’s Title 37-B, the section of law governing emergency executive power in Maine.
While it is unlikely that the current iteration of the Maine Supreme Court would draw the same conclusions as Michigan’s did , the Maine Constitution also expressly vests lawmaking authority to the legislature under the “Distribution of Powers” clause in Article III. As similar cases ripple across the country in response to draconian mandates issued by governor’s during the pandemic, the question of limits on executive authority during an emergency will be one that every state stares down in the coming years.