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Publications | October 13, 2020
2 minute read

MI Supreme Court Doubles Down: Governor’s Executive Orders Are Void

On Monday, October 12, 2020, the Michigan Supreme Court issued two rulings that clarify its earlier ruling that Governor Whitmer lacked authority to declare a state of emergency and issue executive orders after April 30, 2020, without the approval of the Legislature. First, the high court denied the Governor’s motion to keep her executive orders in effect until the end of the month, despite the court’s In re Certified Questions decision. That decision was issued after the court received questions from a federal court regarding whether the Governor had authority under the 1945 Emergency Powers of the Governor Act and the 1975 Emergency Management Act, and answered that the Governor did not. The unusual nature of the case—answering questions from the federal court—gave rise to some confusion as to whether the court’s ruling immediately struck down the Governor’s executive orders. The Governor asked the Michigan Supreme Court to resolve that confusion by staying the effect of its opinion. The court refused.

The Michigan Supreme Court also took action in a separate case—reversing the Legislature’s appeal of a Court of Appeal decision affirming the Governor’s authority under the 1945 Emergency Powers of the Governor Act. The high court applied its ruling in the parallel In re Certified Questions case to conclude that the Court of Appeals decision was incorrect. This 4-3 ruling is no surprise given that the high court had just resolved the same issue in favor of the Legislature’s position. But, to ensure there was no question as to when the ruling becomes effective, the Michigan Supreme Court gave its ruling immediate effect. 
Here are the key takeaways from all of this:

  • The executive orders issued after April 30, 2020, are now indisputably invalid.
  • The Michigan Department of Health and Human Services has issued public-safety orders to re-implement many of the social distancing and mask rules contained in the executive orders. The DHHS’s most recent order clarifies that the earlier capacity and distancing limitations on businesses, including gyms and restaurants, remain in effect while imposing additional requirements that all “operations” enforce indoor mask-wearing rules and for everyone at a non-residential outdoor gathering to wear a mask even if the attendees are social distancing.
  • Further complicating the picture, some county health departments have issued health orders that are more restrictive than the DHHS orders.

The new DHHS orders are not models of clarity, and we expect further departmental orders, county health department orders and legislative developments this week. For more information or specific questions about what rules affect you or your business, please contact Michael Brady, Troy Cumings, Amanda Fielder, Monique Field-Foster, Matthew Johnson or Matthew Nelson.