Name: Michigan Supreme Court rules against Whitmer on emergency powers but effect unclear
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Michigan Supreme Court rules against Whitmer on emergency powers but effect unclear

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Detroit Free Press 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.&nbsp;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&nbsp;— and not as part of a state case before it&nbsp;— it wasn't immediately clear what would happen next or when it would take effect.Whitmer issued a statement denouncing the decision.&nbsp;“Today’s Supreme Court&nbsp;ruling, handed down&nbsp;by a narrow majority of Republican justices,&nbsp;is&nbsp;deeply&nbsp;disappointing, and&nbsp;I vehemently disagree with the court’s interpretation of the Michigan Constitution," she said. "Right now, every state and the federal government have some form of declared emergency. With this decision, Michigan will become the sole outlier&nbsp;at a time when the Upper Peninsula is experiencing rates of COVID infection not seen&nbsp;in our state since April."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&nbsp;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&nbsp;responsive measures&nbsp;I have&nbsp;put in place&nbsp;to control the spread of the virus&nbsp;will&nbsp;continue&nbsp;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, 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&nbsp;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," said Wayne State University Law School professor Robert Sedler. "The existing stay-at-home orders would not be valid... This is going to have quite an impact."In the 4-3 ruling, the court determined the governor did not have the authority under state law to issue any additional emergency declarations pertaining to the pandemic after April 30. That was the last date when the Legislature allowed the governor to declare an emergency, having declined to extend an earlier declaration.&nbsp;"The governor’s declaration of a state of emergency or state of disaster may only endure for 28 days absent legislative approval of an extension. So, if the Legislature does nothing, as it did here, the governor is obligated to terminate the state of emergency or state of disaster after 28 days," said the majority opinion, written by Judge Stephen Markman.The governor relied on her interpretation of the law to broadly mandate business closures, mask requirements, sports restrictions and more. While many of those restrictions have been lifted, many more remain. Just hours before the ruling, the governor determined the Upper Peninsula needed to abide by stricter rules for gatherings and masks because of&nbsp;an uptick in&nbsp;coronavirus cases.&nbsp;Now, the authority of orders dictating everything from&nbsp;clubs and bars operating at limited capacity to mask mandates for high school athletes has been thrown into question.&nbsp;The decision stems from a lawsuit in federal court, filed by several health care companies against Whitmer pertaining to a specific order. The federal judge in the case asked the state Supreme Court to rule on matters of state law relevant to the case.&nbsp;While the court's opinion is in response to the federal judge's request, the opinion still directly affects the laws cited by the governor to issue her executive orders, though it was not immediately certain whether that would have to wait for a state judge to apply it in a case. With the court decision having been rendered, however, that may only be a matter of time.&nbsp;The federal court asked the state Supreme Court to look at two questions: whether a 1945 law allowed the governor to issue executive orders related to the pandemic, and if a separate law the governor cited was constitutional.&nbsp;The justices ruled 4-3 on both questions, with the majority arguing the governor did not have the authority under the 1945 law and the separate law was unconstitutional.&nbsp;As is common, different judges agreed with different portions of the ruling. On the first question, Chief Justice Bridget McCormack joined justices David Viviano, Richard Bernstein&nbsp;and Markman in determining the governor did not have the authority to issues executive orders after April under the 1945 law. Justices Brian Zahra, Elizabeth Clement and Megan Cavanagh disagreed.&nbsp;On the second questions, Markman joined Zahra,&nbsp;Clement and Viviano in determining the separate law Whitmer relied upon was unconstitutional. Viviano agreed with the ultimate ruling on this point, but disagreed with parts of the legal arguments presented.&nbsp;In part, the ruling essentially determines that the Emergency Powers of Governor Act of 1945&nbsp; — the law people signing petitions are trying to repeal&nbsp;—&nbsp;is unconstitutional because it "constitutes an unlawful delegation of legislative power to the executive."Whitmer has relied on an interpretation of this&nbsp;emergency powers law&nbsp;and the Emergency Powers Act of 1976 to issue a litany of executive orders related to the pandemic. The orders mandated the closure of businesses and restricted the number of people allowed to gather at events, all in the name of safety and preventing the spread of coronavirus.&nbsp;But several parties, including&nbsp;Republican leaders of the&nbsp;majority-GOP&nbsp;state Legislature, argued that the governor overstepped her powers after it refused to extend a state of emergency&nbsp;— as required under the 1976 state law.&nbsp;“(We) do not believe that the Legislature intended to allow the governor to redeclare … the identical state of emergency and state of disaster under these circumstances,” Markman wrote. He and a majority of the judges also ruled the law passed in&nbsp;1976 delegating emergency powers to the governor was overly broad, saying it "constituted an unlawful delegation of legislative power to the executive."The majority of the court also ruled that although the law affords the governor broad authority to act, it unconstitutionally gave the executive powers that should only reside with state lawmakers.&nbsp;In short, the court determined the&nbsp;law is unconstitutional because it allows the executive branch of government to do something that only the legislative branch is supposed to do.&nbsp;"Put simply, and our criticism is not of the Governor in this regard but of the statute in dispute — almost certainly, no individual in the history of this state has ever been vested with as much concentrated and standardless power to regulate the lives of our people, free of the inconvenience of having to act in accord with other accountable branches of government and free of any need to subject her decisions to the ordinary interplay of our system of separated powers and checks and balances, with even the ending date of this exercise of power reposing exclusively in her own judgment and discretion," the majority wrote.&nbsp;"It is in no way to diminish the present pandemic for this Court to assert, as we now do, that with respect to the most fundamental propositions of our system of constitutional governance, with respect to the public institutions that have most sustained our freedoms over the past 183 years, there must now be some rudimentary return to normalcy."Legislative and state Republicans heralded the decision. House Speaker Lee Chatfield, R-Levering, called the ruling a giant win for the state.&nbsp;“The people of this state have been denied a voice and a seat at the table in decisions that have impacted every facet of their lives and their futures over the past eight months. They deserve to have their representatives bring their voice and their concerns into this decision-making process," Chatfield said in a statement late Friday.&nbsp;"The Legislature was there in March and April to work with the governor to improve her executive orders and help keep Michigan healthy and moving forward together. It worked well, just like the authors of our Constitution intended. Months later, we are still ready to work alongside Gov. Whitmer in a bipartisan way to improve the state’s response to this pandemic."Senate Majority Leader Mike Shirkey, R-Clarklake, agreed, but noted the ruling does not change the need for personal responsibility.&nbsp;"This ruling does not alter our collective responsibility to protect ourselves and others by wearing masks, social distancing&nbsp;and washing our hands.&nbsp;The virus still presents a threat to our health and we must be vigilant in our actions," Shirkey said.&nbsp;"Now is the time for bipartisan action to transition from government operating in fear of the virus to government managing life in the presence of the virus."Michigan Republican Party Chairwoman Laura Cox said the ruling makes for a great day for the state.&nbsp;"The court rightly recognized that the constitution gives the Legislature a role to represent the people of this state," she said. "Governor Whitmer overexerted her powers.&nbsp;The Legislature wants to be a willing partner in dealing with COVID-19 and Governor Whitmer should recognize their duly delegated role.”From the perspective of sporting events, which have been considered potential superspreader events because of large crowds, it remains unclear what will come next.Geoff Kimmerly, a spokesman for the Michigan High Schools Activities Association, said the organization will be discussing the court ruling with attorneys over the weekend and hopes to have some clarity late Monday or early Tuesday.The decision came down shortly before high school football games kicked off around the state, two days after the MHSAA announced it would gradually begin to allow schools to increase attendance at events.“Right now, we just don’t know,” Kimmerly said.As far as Michigan and Michigan State football, which are scheduled to kick off their seasons the weekend of Oct. 24, the Big Ten decided no fans would be allowed when it announced Sept. 16 it would attempt to play a season this fall. The conference’s 14 schools span 11 states.“This has always been about health and safety,” Penn State athletic director Sandy Barbour said last month. “We’re returning to an ability to play because we’ve determined that the play can be done safely. We’ve made a decision as a conference not to have fans out of an abundance of caution.”The fight over Whitmer's authority to issue orders, including those requiring Michiganders to wear masks and stay at home as much as possible at the height of the outbreak in spring, led to protests in Lansing and President Donald Trump issuing a post on Twitter at one pointing calling to "Liberate Michigan." The state Supreme Court order came the same day Trump announced he had tested positive for coronavirus. Whitmer's actions, meanwhile, have largely been supported by state residents, according to polls.Her actions, however, also prompted several efforts to get people to sign petitions in order to repeal the laws cited by the governor. One initiative, Unlock Michigan,&nbsp;garnered more than 500,000 signatures&nbsp;but is under investigation by the attorney general after video evidence showed&nbsp;potentially illegal means of collecting signatures.&nbsp;In August, to issue the executive orders in response to the pandemic, which has led to 6,781 deaths in the state since March.&nbsp;"We hold that the governor’s declaration of a state of emergency, her extension of the state of emergency, and her issuance of related executive orders fell within the scope of the governor’s authority under the EPGA," that&nbsp;court said in a 2-1 opinion.But in June, U.S. District Judge Paul Maloney in west Michigan, who was hearing a lawsuit brought by western Michigan medical providers over an order by Whitmer&nbsp;that barred nonessential medical procedures for a time, issued questions to the state Supreme Court . .The court held a hearing on the questions last month.&nbsp;Under the 1976&nbsp;law, the governor can declare a state of disaster or emergency if she finds one to exist and it remains in place for 28 days, unless the Legislature extends it.&nbsp;Whitmer's office has argued throughout the pandemic that the law also requires her to declare a state of emergency if one exists. When the Legislature refused to extend the earlier declaration even though the outbreak was continuing and Michiganders' were still at risk, she said she had no recourse but to issue another one.The court was unpersuaded, saying, "When the cited language is read in reasonable conjunction&nbsp;with the language imposing the 28-day limitation, it is clear that the governor only&nbsp;possesses the authority or obligation to declare a state of emergency or state of disaster&nbsp;once and then must terminate that declaration after 28 days if the Legislature has not&nbsp;authorized an extension.""The governor possesses no authority — much less obligation — to&nbsp;redeclare the same state of emergency or state of disaster and thereby avoid the&nbsp;Legislature’s limitation on her authority," it said.Staff writer Chris Solari contributed to this report.&nbsp;Contact Dave Boucher: dboucher@freepress.com or 313-938-4591. Follow him on Twitter @Dave_Boucher1.

Detroit Free Press 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.&nbsp;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&nbsp;— and not as part of a state case before it&nbsp;— it wasn't immediately clear...

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Dave Boucher

Todd Spangler covers digital media and technology for Variety, which he joined in 2013. A business and technology journalist with more than 25 years of experience, he previously was technology editor at cable industry publication Multichannel News and news editor at IT journal Baseline. Earlier in his career, Todd worked at tech and internet publications including PC Magazine, Interactive Week, Web Week and Internet World. He holds a bachelor's degree in journalism from Northwestern University.

https://variety.com/author/todd-spangler/

Todd Spangler

The Detroit Free Press is the largest daily newspaper in Detroit, Michigan, US. The Sunday edition is titled the Sunday Free Press. It is sometimes referred to as the Freep (reflected in the paper's web address, www.freep.com). It primarily serves Wayne, Oakland, Macomb, Livingston, Washtenaw, and Monroe counties.  The Free Press is also the largest city newspaper owned by Gannett, which also publishes USA Today. The Free Press has received ten Pulitzer Prizes and four Emmy Awards. Its motto is "On Guard for 189 Years".

Michigan Supreme Court rules against Whitmer on emergency powers but effect unclear

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