Word ‘Epidemic’ Missing From Law Whitmer Bases Unilateral Governance On

The word “epidemic” does not appear in the 1945 state of emergency law that Gov. Gretchen Whitmer cites as the basis for exercising unilateral governance through enforceable executive orders.

The state’s other state of emergency law, enacted in 1976, does contain the word “epidemic” in its definition of what constitutes a disaster. It also limits the duration of a state of emergency to 28 days unless the Legislature agrees to extensions.

Judge Jonathan Tukel of the Michigan Court of Appeals argued it was no accident that legislators specifically included the term “epidemic” in the 1976 state of emergency law that, unlike the 1945 law, precludes a governor from seizing unilateral control of the government with no end date.

Tukel’s opinion was spelled out in a 21-page dissent from a ruling against a lawsuit the Legislature filed against Whitmer’s ongoing state of emergency declaration.

The Court of Appeals ruled 2-1 that Whitmer has the authority to keep Michigan under a state of emergency under the 1945 law.

Tukel explained the issues at stake in his dissent.

“We assume that when the Legislature crafts legislation it knows what the existing law is, and takes it into consideration,” he wrote, arguing that because the 1945 law does not include the term “epidemic” and the 1976 law does, the governor must rest her emergency powers authority on the 1976 law “with its associated time limit.”

He added, “The majority arrives at a construction under which the EPGA [1945 law] and the EMA [1976 law] each apply to an epidemic; the governor can proceed under either one, without any restriction; each permits the governor to exercise unlimited power; but one limits the governor’s authority to 28 days without legislative authorization while the other continues indefinitely until the governor says otherwise.”

Tukel included a summation: “This result by the majority constitutes anything but a harmonious construction; it is a completely discordant result which does not even attempt to reconcile the inconsistencies between the two statutes, but simply lumps all of the various aspects of them together, throws up its hands, and concludes, essentially, “Who are we to say that the Legislature did not intend to nullify its own work?”