Michigan Supreme Court Strikes Down Gov. Whitmer’s State of Emergency Order

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

53 thoughts on “Michigan Supreme Court Strikes Down Gov. Whitmer’s State of Emergency Order”

  1. Darren, I have tried to post a relevant link twice now? Do you know why it is being stopped from posting? Thanks, Jill

  2. Gov. Whitmer is already going around the Michigan Supreme Court ruling by having local health departments issue orders so that her e.o.’s stay in place. Yesterday was the first. It is now a misdemeanor to leave your home without a mask etc. (other rules too numerous to mention) in Oakland County. She had also publicly stated other rules to come! My only conclusion is that she wants a job so badly in the possible Biden administration that she will do everything and anything to suppress our businesses from fully opening. Help! She has no intention of working with our legislature. For eight months one dictator has ruled over ten million people with no accountability and accused all who have tried to reason with her as bullies. She is the bully. You’ll notice she is making the rounds if TV again and nobody presses her on Supreme Court if Michigan ruling.

    1. …”the Supreme Court in Michigan undermined my emergency rule…” Yes they did thank god! Now that it is clear she has no intention of working with the legislature, I hope there will be a stay of her “rule” Monday. She has committed murder in the nursing homes and her saying that she has saved lives is an amazing lie.

      Disease is treated therapeutically, not by tyranny and coercion.

    2. And now she is calling the Michigan Supreme Court a bunch of biased Republicans on National television. I am sure they are furious. She won’t be stopped no matter what. This is the USA and our liberties have been taken away. Is there no one who can stop her?

      1. Yes, she will be stopped. If I can get JT or Darren to post my link, that will show one avenue for stopping her. People are rising up. Hang in there and do what you can to the best of your ability to resist. Even the smallest action, when you can take it, matters.

    3. Joanne, I’ll bet she wears a leather skirt and carry’ a riding crop.

  3. “…OR TO THE PEOPLE”

    Powers not delegated…are reserved to the States, OR TO THE PEOPLE.

    This law provides “…structural protection against federal and STATE TYRANNY.”

    This law does not presume the immutable subsumption of the people by the state.

    This law separates the State and the People as two distinct and sovereign entities.

    States and the People have powers that are necessary and proper.

    States and the People do not have powers that are not necessary and proper.

    It is necessary and proper for people to protect themselves as individuals.

    It is not necessary and proper for the state to mandate and compel the consumption of food, clothing, shelter or therapies for a cold or the flu.
    _______________________________________________________________________________________________________________

    Let’s all read the LAW together:

    10 Amendment

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

  4. The sole reason to use the mask if you use the correct masks is to prevent others from being sprayed with the disease carrier from coughing or sputum . How big is the virus.

    Virus’s are natures ultimate parasite. They must live inside a host cell.

    No cure has ever been found for any virus ranging from the ever present common cold through flu’ s up to Ebola and AIDs. They have no enzymes and can produce no energy nor reproduce on their own. Outside a host cell they are inert but not dead. Their outer shell or coat provides a shape. Inside is pure DNA or RNA. Nothing else. Once they invade or are introduced into a host cell they turn that cell into a virus factory. Two kinds. One invades, uses the host to reproduce then leaves a host cell. Another called a retrovirus borrows the cell for reproductive purposes but does not kill it.

    The Bunyaviraidae group are spherical in shape about three billion to the inch. Flavivirdae eight billion to the inch. Dengue is single strand RNA reproduces 100,000 or so from one virus in one host cell. It’s favorite seems to be mosquito saliva cells providing a perfect vector and might carry multiple condition.

    Besides colds, flue, Aids, Dengue, Ebola, some of the lesser well known are African Horse, Camel Pox, Hog Cholera, Rift Valley Fever. Some are Shepherds Crook such as Ebola. two instances are 5 million to 8 million to the inch.

    When you spray others you spray the cell hosting a virus. When ingested by breathing or drinking infected water as a n example it doesn’t die just gets in your body and goes looking for a new home. Incubation varies as does virulence according to what kind of virus and they change every year depending.

    Some of us seem to have more immunity some don’t While age and condition is a factor it’s not the whole story.

    Once a person ingests they are a carrier.

    1. Thank you very much. I watched every second of the entire hour and heard and comprehended every word.

      Not!

      Brilliant post! Simply brilliant!

      I have an idea, how about we read the simple and clear language of the actual, @real American Founders, rather than be mystified by the posers, which says “…reserved to the States respectively, or to the people.”

      There can be no doubt that “…the people…” are the appropriate authority for and are capable of making their own decisions as to their essential, physical survival.

      Perhaps, you reject, arbitrarily and for all Americans, the actual, de facto words and manifest tenor of the Founders in their Constitution as adopted by the United States.

      From whence do you derive your superior authority, immutable power and absolute dominion?

      “…or to the people.”
      ________________

      10 Amendment

      The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

  5. Witmer is just bitting around the edges. Let’s take the logic to it’s final conclusion. Maskes are being used by a very large percentage of the population yet the virus continues to spread. Consequently, to completely bring the spread to a halt we must bring all human interaction to an end. Ofcourse, Witmer does not have the intestinal fortitude to put forth the ultimate action to totally curtail the spread of the virus. I would have no objection to her publicly uncourageing the use of masks. However, her unconstitutional use of her power is simply blatent pandering to her constituency and her Party friends. Political power must be exercised in the cause. We can’t let that “pesky” Constitution get in the way can we. There is ready solution for her to get her way. Pack the court.

    1. Thank you for noticing.

      Article 1, Section 8, provides Congress the power to tax ONLY for “…general Welfare…,” omitting and, thereby, excluding any power to tax for individual or specific welfare, redistribution of wealth or charity. The same article provides Congress the power to regulate ONLY money, the “flow” of commerce and land and naval Forces. Additionally, the 5th Amendment right to private property is not qualified by the Constitution and is, therefore, absolute, allowing Congress no power to claim or exercise dominion over private property, the sole exception being the full taking of property under the principle of eminent domain.

      Government exists to provide maximal freedom to individuals while it is severely limited and restricted to merely facilitating that maximal freedom of individuals through the provision of security and infrastructure.

      The entire communistic American welfare state is unconstitutional, including but not limited to, affirmative action, quotas, welfare, food stamps, rent control, social services, forced busing, minimum wage, utility subsidies, WIC, TANF, HAMP, HARP, TARP, Agriculture, Commerce, Education, Labor, Energy, Obamacare, Social Security, Social Security Disability, Social Security Supplemental Income, Medicare, Medicaid, “Fair Housing” laws, “Non-Discrimination” laws, etc.

      Karl Marx wrote the Communist Manifesto 59 years after the adoption of the Constitution because none of the principles of the Communist Manifesto were in the Constitution. Had the principles of the Communist Manifesto been in the Constitution, Karl Marx would have had no reason to write the Communist Manifesto. The principles of the Communist Manifesto were not in the Constitution then and the principles of the Communist Manifesto are not in the Constitution now.

  6. Wearing a mask is a good idea. Forcing them to be worn is likely unconstitutional. Stores certainly have the right to impose a no-mask, no service rule, just like any other dress code.

    Frankly, maintaining 6 feet of physical distance is the best defense against spreading Covid-19. Remember, the goal is to prevent spreading it, not just prevent catching it. Those in low risk groups may not be thinking along these lines. Teens and adults in their 20s are not wearing masks, en masse, and socializing. Then they spread it to people who ARE in high risk groups. So talk to your young relatives about personal responsibility and finding their protective instinct. My kid wears a mask without complaint to keep from giving me Covid-19. He’s 10. Why does a 10 year old behave better in that regard than most young adults?

    SARS-CoV2 is 70 nm. Typical mask pore size is 20,000 nm, more if it’s a knit or loose weave. A mask does not filter any virus out of the air. Even the viruses that stick to the outside of the mask can be breathed in over time. What a mask can do, however, is help you contain the infectious moisture you expel to yourself. It helps corral any spit when you talk, any heavy droplets, and any cough mucous.

    This is why, even before Covid-19, if you went to an urgent care or ER with a cough, you were asked to wear a mask. This is why in Asian cultures, as soon as someone is sick, they don a mask when they go out.

    You can have Covid-19, and be infectious, before you exhibit symptoms, or with mild symptoms that you might think are just allergies.

    OK, now that I’ve done my best to convince you to wear a mask, I will also say when not to wear one.

    You don’t need to wear a mask when you are outside, alone, or only with the people in your bubble. There has been some major government overreach in this area.
    People with breathing problems, like me, will find tight weave masks difficult to breathe through. I have a fabric mask as a backup in my car for when I forget to bring an N95 (long since unable to reorder) or a KN95. It’s fine for short duration, but I cannot exert myself in. CO2 builds up too rapidly and it’s too hard for me to suck air through. I realized this when I loaded up 6 bags of horse and chicken feed in the back of my truck. All of a sudden, I got lightheaded, and thought I was going to faint. As soon as I pulled the mask off, I was fine. I had worn the mask because others were loading up feed, too, and when they walked away, I had no where to put it but on my face.

    Which brings me to the third point. Don’t exercise in a mask. It’s not good for your health. There have been some medical emergencies, and tragedies, from children and adults trying to exercise wearing a mask. Either spread people out enough that a mask is not necessary, do the activity by yourself, or don’t do it at all. Mandating that children who have returned to school wear a mask in PE is dangerous.

    Also, take a look at your mask. Do you see a lot of lint or fuzzy fibers? If so, don’t use it. Constantly breathing in lint caused some rather infamous industrial illnesses in cotton fabric factories in England in the 1800s (See Elizabeth Gaskell’s North and South. No. Not the one with Patrick Swayze.)

    Also, if your mask is fabric, wash that mask. Eeew. Not washing it is like tying the same handkerchief around your face every day for a year, without washing it.

  7. This ruling has nothing to do with Trump being sick.
    r
    Governors do not make law in our system of govt. The legislature makes laws and is a co-equal branch of govt. Too many of our people tolerate tyranny and I’m glad the lawsuits are coming to aid those who believe in OUR system of govt.

    This is happening world wide. Each minion gives the same order at at the same time, around the world. As Canadian attorney, Rocco Galati showed, bgates had a zoom meeting w/400 world mayors to tell them how to proceed against their own people, which they readily did. This might give pause to those who think tyranny is just fine. One man ordering willing minions is not our system.

    Further, we need due process from the officials in public “health” who act out their own tyranny. Lawsuits against those people for fraud, personal lawsuits with prison time, are in the works. Ohio Stands Up is a good place to read a lawsuit which addresses many issues of all the lies and fraud.

  8. Obama said at a fundraiser: “Although we’re in the midst of a big political fight, and we take that very seriously, we also want to extend our best wishes to the president of the United States, the first lady,”

    That is an example if class one could wish many others to follow.

    1. I thought Obama said just the right thing in that moment.

      I have been appalled at what I’ve seen written on social media. More and more moderate Democrats have devolved into extremism. People I know have howled that they hope Trump dies, some that he dies in agony. Many have said, over the past 4 years, that Trump is racist (based on debunked propaganda like the “fine people” remark), and therefore anyone who votes for him, i.e. Republican voters, are all racist, etc.

      It’s this sort of hatred that contributed to driving me further from the Democrat Party. I used to occasionally vote for Democrats or their politics, though in general I was right of center. No longer. I must admit my own opinion of the Democrat Party has hardened into horror. I still think that good people vote Democrat because they innocently believe the propaganda, and they think they are helping people. I don’t think most Democrats, themselves, are wrong, I just think the party has veered far into extremism. I don’t even think Antifa is evil. I think they are brainwashed to misunderstand Fascism, misapply it to people who want the opposite of Fascism. They think they are avenging angels when sadly they are the bullies.

      1. I agree with this completely. At some point we must course correct, though, or we will lose the opportunity to ever do so. The sanity will never come from the last group mentioned though, and they will be the ones ultimately shaping future generations. This could have been addressed long ago much more easily. Now we may find ourselves with our last chance to right the ship, and we should probably take it.

  9. Can anyone Tell me why trump and barr arent doing these types of lawsuits all over the place?

    1. Because the powers not given to the federal government by the states are retained by the states. (10th amendment). Just as Biden can not order mandatory mask use nationally except on federal properties, the federal government can not interfere with laws within states, such as those the state S.C. fund unconstitutional in MI. The feds were never delegated that authority, (thank heaven!).

      1. “…OR TO THE PEOPLE”

        Powers not delegated…are reserved to the States, OR TO THE PEOPLE.

        This law provides “…structural protection against federal and STATE TYRANNY.”

        This law does not presume the immutable subsumption of the people by the state.

        This law separates the State and the People as two distinct and sovereign entities.

        States and the People have powers that are necessary and proper.

        States and the People do not have powers that are not necessary and proper.

        It is necessary and proper for people to protect themselves as individuals.

        It is not necessary and proper for the state to mandate and compel the consumption of food, clothing, shelter or therapies for a cold or the flu.
        _______________________________________________________________________________________________________________

        Let’s all read the LAW together:

        10 Amendment

        The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

      2. The States cannot “interfere” with the freedoms, rights, privileges and immunities provided to individuals by the Constitution, which are reserved to the people, or to the States, whichever is necessary and proper and whichever can or cannot be accomplished by the free people.

  10. Another example of the perverse interpretation of the Constitution. The world has just seen the perfect example of poetic justice, Covid/Shmovid Trump getting the virus. Let’s follow that up with all these ‘I gots my rights’ fools getting the virus. Let’s start with the lawyers. Shakespeare said it correctly, ‘First we kill all the lawyers.’ Mankind has tempered since then. So, let’s just give all the legal experts that self righteously put the people at risk, the Covid-19.

    1. Nope it is the clear meaning of ANY constitution that had an executive, legislative and judicial branch.

      You can not have a government with divided responsibilities if you give one branch the power to decide unitaterally and indefinitely that the other branches have no power.

      The dissent agreed that Whitmer’s actions were unconstitutional.

      That should be the end of this. If the actions are unconstitutional then they are without legitimate power and meaning. PERIOD, The end. 3

    2. Yes, we should not be governed by the rule of law, by elected representatives, but we should be ruled by puportedly infallible medical experts.

    3. Trump practiced social distancing and when near people who had not been tested, wore a mask – and got the China virus, nevertheless, showing that wearing face-diapers doesn’t protect and the absurdity of forcing people to wear them. And, of course, the non-necessity of the Michigan governor’s – unconstitutional – executive orders.

      OTOH, if the medication Trump is taking cures him, that will be proof before the entire nation that we have a cure, can distribute the medication widely, lift the restrictions, and let us all get back to our normal lives.

      1. proof before the entire nation that we have a cure
        ***
        Maybe not. Individual responses to the disease vary widely as do responses to treatment protocols. What works with some people may not work with others. China has sent the world a deadly menace and it is proving difficult to confront.

    4. Still not getting it? This is tough for us trying to constantly bring you up to minimum speed in order to hold a modicum of discussion. You are just lacking in too many fundamental principles to make it worth the time

    5. Henry VI, Part 2, Act IV, Scene 2

      “JACK CADE. Valiant I am.
      SMITH [aside]. A must needs; for beggary is valiant.
      JACK CADE. I am able to endure much.
      DICK [aside]. No question of that; for I have seen him whipp’d three market-days together.
      JACK CADE. I fear neither sword nor fire.
      SMITH [aside]. He need not fear the sword; for his coat is of proof.
      DICK [aside]. But methinks he should stand in fear of fire, being burnt i’ th’ hand for stealing of sheep.
      JACK CADE. Be brave, then; for your captain is brave, and vows reformation. There shall be in England seven half-penny loaves sold for a penny: the three-hoop’d pot shall have ten hoops; and I will make it felony to drink small beer: all the realm shall be in common; and in Cheapside shall my palfrey go to grass: and when I am king,– as king I will be,–
      ALL. God save your majesty!
      JACK CADE. I thank you, good people:– there shall be no money; all shall eat and drink on my score; and I will apparel them all in one livery, that they may agree like brothers, and worship me their lord.
      DICK. The first thing we do, let’s kill all the lawyers.
      Jack CADE. Nay, that I mean to do. Is not this a lamentable thing, that of the skin of an innocent lamb should be made parchment, that parchment, being scribbl’d o’er, should undo a man? Some say the bee stings; but I say ‘t is the bee’s wax, for I did but seal once to a thing, and I was never mine own man since.”

      “Dick The Butcher” suggests one of the ways the band of prophets, maniacs and murders can improve the country is to kill all the lawyers.
      Dick, as the author, describes, acts as a lawless, ruthless and merciless barbarian.
      “Dick The Butcher” is a killer, who kills without reason, logic or common sense.
      He, and his other outlaw murders, find his lawless remedy to his perceived societal problem(s) as moral and self righteous.
      Words can and always will, be taken and used out of context for self serving and selfish wants and desires.
      In context, the author, leaves no doubt, “Dick The Butcher” and his merry band of murders have material needs and wants which must satisfy, who intend to act by “The first thing we do, let’s kill all the lawyers.”
      Why?
      Lawyers are men and women who represent reason, logic and common sense … experience … who can and do hold at bay the irrational, emotional, violent and murderous mob.
      When citizens, the common man and women or the chief executive are above the rule of law, then no one is safe.
      Restore the Rule of Law
      Restore the Constitution
      Restore the Republic
      dennis hanna

  11. If only the wise Nine in DC could have been involved Nationally, as the China Virus was and is a National assult. Purposeful?????

  12. All AMericans should rebel against such extreme levels of executive authority that governors have usurped. An emergency by its prima facie definition has a limited scope and there’s no suggestion that The reason for checks and balances is to ensure this behavior of dictatorial and autocratic powers are controlled. It’s a joke how the Left and Democrats call conservatives and the President fascist when it is the Left and Democrats who actually behave as fascists and support this type of behavior by their politicians. Every day 7500 US citizens are estimated to die. Since March we would have expected 1,575,000 Americans to die. The Covid claimed 200,000 is only 12% of the deaths …. what about the other 88% of deaths. Emergency powers cannot be justified beyond a reasonable and limited time and that ended about 30 days after they were invoked.

  13. While I applaud the Michigan Supreme Court for this call, I feel it does not adequately address the issue of Legislative abdication of responsibility in a gathering crisis. Our system erected checks and balances on hoarding power, but not on abdication of responsibility.

    1. It could be a start rather than a definitive opinion. Other courts now know where to at least begin looking for overreach with this precedent, and it is probably applicable in many other states. I’m hoping it inspires any and every state with a mini tyrant at the helm to follow. If we can turn things around the rest of the way, the dems, the valley, and the media are never getting their credibility back. I’m hoping the more state-specific personal and class actions start around then. The next couple of years could be a field day for attorneys – make sure your tools are sharp!

    2. We are mired in corruption of our morals and in government. Take corporate money out of politics.

  14. The Governor has shown herself to be willful and to be unwilling to set priorities.

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