Late Friday afternoon, October 2, 2020, the Michigan Supreme Court issued an opinion which states that the statutes Governor Gretchen Whitmer has been relying on as the source of her authority to issue executive orders either do not authorize the Governor’s actions or are unconstitutional. Despite the dramatic nature of the decision, it has no immediate legal effect. The short version: the Governor’s executive orders remain in effect for the time being, but there is going to be a lot of scrambling in Lansing for the next few weeks.
The Governor has claimed authority to issue executive orders under the Emergency Powers of the Governor Act of 1945 (EPGA) and the Emergency Management Act of 1975 (EMA). The EMA allows governors to declare states of emergency or disaster, but requires that the governor obtain legislative approval to continue the state of emergency beyond 28 days. The EPGA also authorizes governors to declare states of emergency and disaster, but does not require the governor to obtain legislative approval. The Michigan Legislature declined to approve the continuance of a state of emergency after April 30, 2020, and so the EPGA has been the source of the Governor’s authority to issue executive orders since then.
A group of health care providers challenged the Governor’s authority in federal district court, and the district court certified questions to the Michigan Supreme Court regarding whether the Governor had authority to issue executive orders under the EMA and the EPGA. The Michigan Supreme Court rejected the argument that the Governor could restart the EMA’s 28-day clock by terminating the initial declaration of an emergency and then immediately declaring a new emergency. That left the EPGA as the only basis for the Governor’s executive orders.
The challengers claimed that the EPGA violates the Michigan Constitution’s provision vesting legislative or law-making authority solely in the Legislature. The Michigan Supreme Court determined that the EPGA lacks sufficient limits on the duration and scope of the broad powers delegated to the Governor. The result, the court held, is that the EPGA violates the Michigan Constitution because it delegates legislative authority to the executive branch. The court concluded that “the EPGA cannot continue to provide a basis for the Governor to exercise emergency powers."
The Governor has asserted that the Michigan Supreme Court’s opinion does not become effective for at least 21 days pursuant to a court rule. The legislature and others, however, have already questioned whether this court rule applies in this situation. Indeed, the better analysis under Michigan law may be that the Michigan Supreme Court’s opinion is not binding on the Governor until it is enforced by an order from the federal district court. The practical consequence: for the time being, the Governor’s executive orders remain in effect, but there will likely be disagreement over when the ruling becomes effective.
As for efforts in Lansing to address the opinion, the Governor’s office is currently reviewing the opinion’s impact on the executive orders. State departments are studying each executive order issued after April 30 to determine what implications the opinion will have on current state projects, state regulatory decisions, and other state and local activities conducted under the orders. The Governor’s office is also looking at alternative authority and means to achieve the purposes of the executive orders. We expect further clarification on the Governor’s plans to address the opinion next week. Regardless of how the Governor decides to move forward, at least some legislative action will be needed. There has been limited discussion between the Governor’s office and the legislature so far, but that will change. We expect the Governor to begin discussions with the legislature in the next few days. But we also anticipate that the tenuous relationship between the Governor and the legislature, and the fact that we are approaching the most critical period of campaigning before the November election, will complicate the efforts to reach what will likely be a time-sensitive need to resolve how to move forward in addressing the impact of the opinion.
Warner will continue to closely monitor developments in Lansing and in the courts. Please contact Michael Brady, Troy Cumings, Amanda Fielder, Monique Field-Foster, Matthew Johnson or Matthew Nelson with any additional questions.