In a recent column in the New York Times, Michigan Gov. Gretchen Whitmer criticized President Donald Trump for not issuing a national order making the wearing of masks mandatory – a pledge made by Vice President Joe Biden raising serious constitutional questions. Now, Whitmer is having her broad interpretation of state executive authority checked by the Michigan Supreme Court, which found that she violated the Constitution with her extension of the state of emergency.
The Supreme Court found that Whitmer lacked authority under two laws — the Emergency Management Act from 1976 and the Emergency Powers of the Governor Act from 1945. Notably, before the court’s opinion, advocacy groups submitted more than 539,000 signatures in a bid to repeal the 1945 law.
Yet the Michigan Supreme Court has now ruled that neither law gave Whitmer the authority to continue the state of emergency or issuing unilateral orders past April 30th. Justice Stephen J. Markman authored the majority opinion and wrote:
“We conclude that the Governor lacked the authority to declare a ‘state of emergency’ or a ‘state of disaster’ under the EMA after April 30, 2020, on the basis of the COVID-19 pandemic. Furthermore, we conclude that the EPGA is in violation of the Constitution of our state because it purports to delegate to the executive branch the legislative powers of state government– including its plenary police powers– and to allow the exercise of such powers indefinitely.
As a consequence, the EPGA cannot continue to provide a basis for the Governor to exercise emergency powers.”
The ruling will fuel opposition to Whitmer, including protests that she denounced as irresponsible during the pandemic. That position led to further criticism when Whitmer participated in even larger Black Lives Matter protests.
The dissenting opinion authored by Chief Justice Bridget McCormack (with Justices McCormack, Richard Bernstein and Megan Cavanagh joining) drew a curious line. The dissenters agreed with the majority that Whitmer violated the Constitution and did not have the authority to extend the emergency orders but would uphold the EPGA because to facially invalidate the EPGA is unnecessary because there are other judicial remedies.”
This case came before the Court after a federal district court certified questions of state law to be addressed on the constitutionality of Whitmer’s actions.
Here is the decision: In re Certified Questions