Governor Gretchen Whitmer’s controversial executive orders have triggered a court battle with the Michigan Legislature. Beginning March 10, 2020, the governor declared a state of emergency due to the onset of the COVID-19 pandemic based on her authority under Art. 5, Sec. 1 of the Michigan Constitution of 1963, the Emergency Management Act (“EMA”)(MCL 30.401 through 30.421) and the Emergency Powers of the Governor Act (“EPGA”)(MCL 10.31 through 10.33). Soon after, a slew of additional orders followed that closed schools and restaurants, restricted medical and dental procedures, and required citizens to stay home except for essential travel. The Michigan Legislature was initially in favor of the declaration of a state of emergency and passed a resolution of support on April 7, 2020. This resolution also set a deadline of April 30, 2020 for the state of emergency to expire consistent with the EMA.
The governor continued to issue executive orders extending the stay-at-home directive in Michigan and restricting economic activities. As time passed, these lockdown measures became increasingly unpopular and even led to protests at the Capitol building. On April 27, 2020, the governor formally asked the Legislature to approve an extension of the state of emergency under the EMA. Under the law, “[t]he state of emergency shall continue until the governor finds that the threat or danger has passed, the emergency has been dealt with to the extent that emergency conditions no longer exist, or until the declared state of emergency has been in effect for 28 days.” MCL 30.403(4). “After 28 days, the governor shall issue an executive order or proclamation declaring the state of emergency terminated, unless a request by the governor for an extension of the state of emergency for a specific number of days is approved by resolution of both houses of the legislature.” Id. The Legislature refused and instead offered a bill that provided the extension of some executive orders with various end dates and the reopening of Michigan businesses. The governor vetoed that bill and, on April 30, 2020, rescinded the old state of emergency and declared a new state of emergency under the EMA through Executive Order 2020-68. That same day, the governor issued Executive Order 2020-67 that also kept the original state of emergency in place under the authority of the EPGA. In pertinent part, the EPGA allows the following:
- “During times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state, or reasonable apprehension of immediate danger of a public emergency of that kind, when public safety is imperiled, either upon application of the mayor of a city, sheriff of a county, or the commissioner of the Michigan state police or upon his or her own volition, the governor may proclaim a state of emergency and designate the area involved. After making the proclamation or declaration, the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control.” MCL 10.31(1).
- “The orders, rules, and regulations may be amended, modified, or rescinded, in the manner in which they were promulgated, from time to time by the governor during the pendency of the emergency, but shall cease to be in effect upon declaration by the governor that the emergency no longer exists.” MCL 10.31(2).
The EPGA had the advantage that the powers exercised by the governor did not require any participation or cooperation by the legislative branch. The authority is exclusive to the governor, no deadlines are specified, and the law was required to be broadly construed under its own terms.
The Legislature immediately condemned this move as an abuse of power and filed suit in the Court of Claims to enjoin the governor from further action under the EPGA and the EMA. The Michigan Legislature believed that the governor’s authority under the EMA ended on April 30, 2020 and the re-declaration was an attempt to circumvent the law, that the EPGA provided no authority for these executive orders, and that the governor’s actions violated the separation of powers between the executive and legislative branches. The governor responded that the Legislature had no legal standing to challenge her authority in court and that the standards in the EPGA protected against any claim of violating the Legislature’s authority so there was no separation of powers violation. The Legislature responded that it had standing “because it held a special and unique interest in the case where the Governor had nullified a legitimate legislative decision not to authorize continuation of the state of emergency.” It further argued that the EPGA does not give unlimited authority to the governor and that the statute is applicable to “affected areas”, suggesting that the intent was to deal with local emergencies but not statewide issues.
The Michigan Court of Claims found that the Legislature had standing to bring a court action against the governor and determined that the allegation of “uniquely injured it by nullifying an act of the body as a whole” permitted legal action. The Court of Claims found that the EPGA is not limited to only local or regional emergencies, that it may be applied to statewide emergencies, and that it doesn’t violate the separation of powers doctrine. All of the executive orders issued by Gov. Whitmer are valid under the EPGA. However, the Court of Claims found that the governor did violate her authority under the EMA because the initial 28-day period expired without reauthorization and no legal basis existed to “re-declare” the emergency. The exercise of continued executive orders was improper under the EMA, but that is a moot point since all of her executive orders were perfectly valid under the EPGA. The Michigan Legislature appealed the decision to the Michigan Court of Appeals.
On August 21, 2020, in a divided 2-1 opinion, the Michigan Court of Appeals upheld the resolution of all issues by the Court of Claims in House of Representatives v Governor, __ Mich App __; __ NW __ (2020)(Docket No 353655). The appellate court agreed with the trial court that the Legislature certainly had standing to bring this suit against the governor. The majority found that the declaration of the state of emergency, the corresponding extensions and all of the executive orders properly fell in the scope of the EPGA and remained valid. Since all EPGA actions were proper, any alleged violation of the EMA is a moot point. Furthermore, there is no separation of powers violation because the EPGA is specific enough to apply to a “public emergency” only (in this case, the COVID-19 pandemic) and that the governor’s exercise of authority was “reasonable” under the circumstances. The majority found it disingenuous that the Michigan Legislature passed the EPGA over 75 years ago, amended it several times, and now claims their very act is unconstitutional when exercised by the governor today.
Judge Tukel filed a dissent in the case, finding that the governor was improperly exercising legislative power under the EPGA and this law should be unconstitutional due to violating the separation of powers. Since the EPGA is invalid, he argues, the governor’s authority under the EMA is also invalid due the Legislature declining to extend the 28-day state of emergency, so all of the various executive orders issued under either act after the EMA lapsed were null and void. The governor improperly tried to circumvent the EMA by both re-declaring a state of emergency and using the EPGA to avoid the Legislature’s input. In fact, the EMA specifically uses the word “epidemic” where the EPGA does not, suggesting that the EMA was intended to be the proper vehicle by the Legislature for the governor to deal with the global pandemic, not the EPGA. The majority’s interpretation of the EPGA was overbroad and, in Judge Tukel’s opinion, the governor’s exercise of power exceeded constitutional and statutory authority.
The Michigan Legislature may appeal this decision to the Michigan Supreme Court. As the creator of laws, the Legislature also has the constitutional authority to create, modify or rescind Michigan’s statutes, including the EMA and the EPGA. Time will tell if the Legislature can summon the political power to restrict or eliminate the governor’s authority under either act (assuming that the requisite 2/3 of votes in both houses can be achieved to overcome the governor’s veto).
If you have questions about the governor’s executive orders in Michigan or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.