In a stunning move, the Michigan Supreme Court issued a decision on Friday, October 2, 2020 regarding In re Certified Questions From The United States District Court (Midwest Institute of Health, PLC v Governor), __ Mich __; __ NW2d __ (2020)(Docket No. 161492) that Governor Gretchen Whitmer lacked the authority under the Emergency Powers of the Governor Act (“EPGA”) and the Emergency Management Act (“EMA”) to declare a state of emergency or issue executive orders related to the COVID-19 pandemic after April 30, 2020, and further that the EPGA is unconstitutional in that it unlawfully delegates legislative powers to the executive branch. This opinion casts doubt on the enforceability of hundreds of executive orders issued by the governor since April 30, 2020, including the statewide mandate to wear masks.
On March 10, 2020, the State of Michigan identified the first two presumptive-positive cases of the novel coronavirus (COVID-19) in its borders. That same day, Governor Whitmer issued an executive order declaring a state of emergency based on her authority under Art. 5, Sec. 1 of the Michigan Constitution of 1963, the Emergency Management Act (MCL 30.401 through 30.421) and the Emergency Powers of the Governor Act (MCL 10.31 through 10.33). “The governor shall, by executive order or proclamation, declare a state of emergency if he or she finds that an emergency has occurred or that the threat of an emergency exists.” MCL 30.403(4). “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). What followed in the coming months was a flurry of executive orders that closed restaurants and non-essential businesses, mandated wearing masks and face coverings in public, and ordered a statewide lockdown. In particular, the governor issued Executive Order No. 2020-17 that prohibited healthcare providers from performing nonessential procedures such as elective surgeries. The governor initially asked the Michigan Legislature to extend her declaration of the state of emergency by 70 days as required by the EMA, but the Legislature would only pass a resolution extending the state of emergency to April 30, 2020. On the day that the resolution expired, the governor issued Executive Order 2020-67 indicating that the declared state of emergency remained in effect under the EPGA and she continued to issue executive orders under that statute to this day without legislative involvement. These subsequent executive orders continue to impose restrictions on health care providers.
Four Plaintiffs (Midwest Institute of Health, PLLC; Wellston Medical Center, PLLC, Primary Health Services, PC and Jeffery Gulick) brought an action in the U.S. District Court for the Western District of Michigan against Governor Whitmer challenging Executive Order 2020-17 and other related executive orders restricting health care. The federal judge determined that many of the issues here involved unsettled areas of state law so he certified those questions to the Michigan Supreme Court for answers. The following questions were certified to the seven justices:
- “Whether, under the Emergency Powers of the Governor Act, MCL§ 10.31, et seq., or the Emergency Management Act, MCL § 30.401, et seq., Governor Whitmer has the authority after April 30, 2020 to issue or renew any executive orders related to the COVID-19 pandemic.”
- “Whether the Emergency Powers of the Governor Act and/or the Emergency Management Act violates the Separation of Powers and/or the Non-Delegation Clauses of the Michigan Constitution.”
The Michigan Supreme Court heard oral arguments on September 9, 2020. It is important to remember that, although their positions are officially non-partisan, the Supreme Court justices are elected to 8 year terms and are typically affiliated with a political party. There is currently a 4-3 conservative Republican majority on the Court and these partisan lines were clear in the court’s ruling. The current composition of the court is:
- Chief Justice Bridget Mary McCormack (elected in 2012), affiliated with the Democratic Party.
- Justice Stephen J. Markman (appointed by Governor Engler in 1999 and later elected in his own right), affiliated with the Republican Party.
- Justice Brian K. Zahra (appointed by Governor Snyder in 2011 and later elected in his own right), affiliated with the Republican Party.
- Justice David F. Viviano (appointed by Governor Snyder in 2013 and later elected in his own right), affiliated with the Republican Party.
- Justice Richard H. Bernstein (elected in 2014), affiliated with the Democratic Party.
- Justice Elizabeth T. Clement (appointed by Governor Snyder in 2017 and later elected in her own right), affiliated with the Republican Party.
- Justice Megan Kathleen Cavanagh (elected in 2018), affiliated with the Democratic Party.
As to the first certified question, the Michigan Supreme Court unanimously found that the Governor did NOT have authority after April 30, 2020 to issue or renew any executive orders related to the COVID-19 pandemic under the EMA.
As to the second certified question, the majority of the Michigan Supreme Court (Justices Markman, Zahra, Viviano and Clement) held that the Governor did NOT possess the authority to exercise emergency powers under the EPGA because the act unlawfully delegates legislative power to the executive branch in violation of the Michigan Constitution.
In the majority opinion authored by Justice Markman (joined by Zahra, Clement and Viviano in part), he found that the EMA provides the following statutory provisions:
- “The governor shall, by executive order or proclamation, declare a state of disaster if he or she finds a disaster has occurred or the threat of a disaster exists. The state of disaster shall continue until the governor finds that the threat or danger has passed, the disaster has been dealt with to the extent that disaster conditions no longer exist, or until the declared state of disaster has been in effect for 28 days. After 28 days, the governor shall issue an executive order or proclamation declaring the state of disaster terminated, unless a request by the governor for an extension of the state of disaster for a specific number of days is approved by resolution of both houses of the legislature. . .”. MCL 30.403(3).
- “The governor shall, by executive order or proclamation, declare a state of emergency if he or she finds that an emergency has occurred or that the threat of an emergency exists. The 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. 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.” MCL 30.403(4).
It is undisputed by all parties that the governor had authority to issue executive orders leading up to April 30, 2020 because that was the expiration date of the resolution approved by both houses of the Legislature. However, because the Legislature did not approve an additional extension of the “state of emergency” or “state of disaster”, the governor was required to issue an executive order that they were terminated. While she did issue an order terminating as required by statute, she immediately followed it with an executive order redeclaring an emergency and disaster under the same circumstances. The power to redeclare a disaster goes against the intentions of the Legislature because it “would effectively render the 28-day limitation a nullity”. A limitation was clearly required under the statute and, when the Legislature did not authorize the extension, the Governor no longer possessed the authority under the EMA to renew the declaration of the state of emergency or state of disaster during the COVID-19 pandemic and make orders accordingly.
The EPGA, however, has no such arbitrary time limitation. The circumstances and duration that the EPGA is effective under statute are as follows:
- “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. Those orders, rules, and regulations may include, but are not limited to, providing for the control of traffic, including public and private transportation, within the area or any section of the area; designation of specific zones within the area in which occupancy and use of buildings and ingress and egress of persons and vehicles may be prohibited or regulated; control of places of amusement and assembly and of persons on public streets and thoroughfares; establishment of a curfew; control of the sale, transportation, and use of alcoholic beverages and liquors; and control of the storage, use, and transportation of explosives or inflammable materials or liquids deemed to be dangerous to public safety.” MCL 10.31(1).
- “The orders, rules, and regulations promulgated under [the EPGA] are effective from the date and in the manner prescribed in the orders, rules, and regulations and shall be made public as provided in the orders, rules, and regulations. 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).
- “It is hereby declared to be the legislative intent to invest the governor with sufficiently broad power of action in the exercise of the police power of the state to provide adequate control over persons and conditions during such periods of impending or actual public crisis or disaster. The provisions of this act shall be broadly construed to effectuate this purpose.” MCL 10.32.
The justices agree that, under the EPGA’s own terms, the “emergency” does not have to be a brief event and the urgent need for assistance or relief can persist for a long period of time. “In short, an emergency is an emergency for as long as it persists as an emergency.” Slip op. at 18. Nor does the emergency have to be restricted to a local area or “specific zone” as the Legislature argues, for the emergency powers could affect the entire state. However, this immensely broad delegation of power to the governor is why the EPGA fails to pass constitutional muster. It is not per se illegal for the Legislature to delegate legislative authority provided that a valid act provides “an intelligible principle to which the person or body authorized is directed to conform”. Slip op. at 24. The EPGA exceeds this standard in that the delegated power has a great degree of discretion that affects a wide range of different trades and industries with the ability to invoke criminal sanctions and potentially affect fundamental rights. In addition, this blanket authority has no durational scope under the statute and seemingly expire when the governor decides the emergency is over. The fact that the EPGA statute confines the governor’s acts to those that are “reasonable” and “necessary” is not enough to provide adequate standards to prevent the Governor from exercising free reign. The EPGA is too expansive, has a potentially unlimited duration, and its standards are too inadequate to allow it to survive as a permissible delegation of legislative power, so it is rendered unconstitutional. Consequently, the EMA and EPGA cannot continue to provide any basis for the Governor to exercise emergency powers or issue executive orders.
Justice Viviano agreed that the EPGA was an unconstitutional delegation of legislative power but wrote a concurring opinion that the EPGA was never intended to deal with public health crises anyway. He found that the legislative history of the EPGA provided that the governor would be empowered to declare a state of emergency to deal with matters of “public safety”, but this is distinct and separate from matters of “public health”. Public safety matters mean those that invoke the “police powers” of the state and are meant to encompass dealing with insurrections or civil disorder in local areas. Since public health issues were not intended to be covered, Governor Whitmer’s use of the EPGA to deal with the COVID-19 pandemic were already invalid without reaching the constitutional issue.
Chief Justice McCormack (joined by Bernstein and Cavanaugh) issued an opinion concurring with the invalidity of the EMA after April 30, 2020 but disagreed with the unconstitutionality of the EPGA. She believed that the delegation of legislative authority is not a violation of separate powers because the Legislature reserves the right to amend and repeal the EPGA while the judiciary reserves the authority to determine what is “reasonable” and “necessary”. In addition, Michigan citizens can initiate a petition drive to repeal the EPGA and recall the governor (which is occurring). The adequate political and judicial remedies available, in her opinion, prevent the Governor from exercising unfettered power in her discretion. Therefore, she would have found that the EGPA is a constitutional delegation of legislative authority.
Justice Bernstein, while in full agreement with Chief Justice McCormack’s opinion, added in a concurring opinion that the delegation of power by the EPGA does not offend the separation of powers under settled state and federal case law. In addition, Michigan residents could still exercise legal options to challenge individual orders issued under the EPGA that they disagreed with. Since the COVID-19 pandemic is a unique crisis in Michigan history and the principles regarding the non-delegation of powers is woefully inadequate to deal with it, the EPGA should be permitted to stand.
With Governor Whitmer’s unilateral control over the COVID-19 response in the State of Michigan curtailed, the question is what happens now? The same day as the opinion was issued, the Governor issued a statement declaring that “[t]oday’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.” She further stated that “[t]t is important to note that this ruling does not take effect for at least 21 days, and until them, 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.” Although this “21-day” provision is not in the court’s opinion, the governor relies on this statement based on the amount of time a party is given to ask the court to reconsider its decision.
The executive orders issued since April 30, 2020 will likely lapse, but it does not mean that the various provisions such as the mask mandate and business closures will disappear forever. There can be other sources of authority causing these orders to resurface.
- The Democratic governor and the Republican-led Legislature can work together to pass laws codifying some of the public health measures that they agreed upon. These public acts may not be as expansive as the Governor would have wanted, but may be a sufficient stop-gap to prevent a huge resurgence of infection rates.
- The director of the Michigan Department of Health and Human Services retains untapped emergency powers that the governor can rely on. “If the director determines that control of an epidemic is necessary to protect the public health, the director by emergency order may prohibit the gathering of people for any purpose and may establish procedures to be followed during the epidemic to insure continuation of essential public health services and enforcement of health laws. Emergency procedures shall not be limited to [the Public Health Code].” MCL 333.2253(1). These powers have not yet been tested and not yet been litigated. There may be other emergency powers through other state agencies the governor can exercise as well.
- There is nothing preventing counties, cities, townships and other municipalities from passing their own measures such as mask mandates to prevent the spread of COVID-19, provided that these ordinances are not inconsistent with state law or local charters. Local, grassroots efforts may yield a surprising amount of success.
Will the governor try to work together with other stakeholders or will the governor attempt to use other state instruments to exercise unilateral authority over the COVID-19 response in Michigan? Only time will tell. Absent any clear direction from a branch of the State of Michigan, all residents should continue to assume that the present executive orders remain in full force and effect for the time being.
If you or a loved one have further questions or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC today.