Michigan Supreme Court Takes Away Whitmer’s Unilateral Emergency Powers

The Michigan Supreme Court has ruled that Gov. Gretchen Whitmer's emergency orders are illegal and unconstitutional.

The court ruled 7-0 that the governor “did not have authority after April 30, 2020, to issue or renew any executive orders related to the COVID19 pandemic” under the 1976 Emergency Management Act. That was the date on which the governor’s authority under the act expired, and the Legislature did not assent to an extension.

Since that date, the governor has rested her authority to issue enforceable executive orders on the 1945 Emergency Powers of the Governor Act, which places no time limit on how long she can maintain a state of emergency without legislative consent.

The court ruled, by a vote of 4-3, that the 1945 law violates the Michigan Constitution for this reason, holding, “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.”

“We’re ecstatic that the court has ruled in our favor,” said Dr. Randall Baker, president of Grand Health Partners and a practicing surgeon and plaintiff in the case. “We’re thankful for the rule of justice and that we can put patients first, like we’ve been trained and desire to do. It’s a great day for the people of Michigan.”

“The court has restored the voices of 10 million Michiganders by reaffirming the constitutional protections of checks and balances afforded through the separation of powers,” said Patrick Wright, vice president of legal affairs at the Mackinac Center and director of the Mackinac Center Legal Foundation. “This important decision was too long in the making, but now future COVID responses will have the benefit of including the people’s representatives through the legislative process.”

The case was filed by the Mackinac Center Legal Foundation on behalf of three health care clinics that were initially shut down and a patient who could not get medical care and suffered as a result. Grand Health Partners, Wellston Medical Center and Primary Health Services were among the health care facilities across Michigan initially shut down from performing elective procedures like endoscopies and surgeries. Their patients experienced heart attacks and depression. Jeffery Gullick is a patient who faced excruciating pain after being forced to postpone a knee surgery.

“Today’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,” Whitmer said in a statement.

The decision means that the governor will have to work with the Legislature to extend her emergency powers. The Legislature had extended them once, but declined to do so beyond a three-month period.

Another possibility the governor may pursue is continuing to have the director of the Michigan Department of Health and Human Services issue orders which, similar to the executive orders just struck down, have been unilaterally be put into place. But the arguments in the Supreme Court ruling raise the question over whether those orders, too, are unconstitutional. 

Editor’s note: This story has been revised and expanded since it was published.