October 2, 2020
The Michigan Supreme Court says the 1945 law that the Governor has relied upon as authority to issue here long list of COVID-19 orders is invalid—and that makes all of those invalid as well. The ruling came in response to a question raised to the Michigan Supreme Court by a federal court hearing a challenge to orders issued under the law. The Supreme Court said the 1945 law was an “unlawful delegation of legislative power to the executive branch in violation of the Michigan Constitution.” The Governor has initially relied upon a 1976 law to issue her orders. Both that law and the 1945 law required a declaration of emergency to support the issuance of orders, but the 1976 law required the consent of the legislature to extend the declaration more than 30 days. The legislature granted one extension, but refused to grant more when the governor refused to make clear her plans for reopening the state economy, among other things. She proceeded to issue orders under the 1945 law that continue to impose a broad array of restrictions on personal and economic activity in the state. Republicans in the state legislature challenged those action sin state court where they lost before the Court of Claims and in the Court of appeals. Meantime, a group of physicians who had been prohibited from performing what the governor deemed unessential medical procedures sued in federal court making a variety of claims some of which turned on the applicability of the 1945 law. The federal court asked the Michigan Supreme Court for its input on that matter, which lead to the ruling released this afternoon. The decision in the case brought by the state legislature is also before the Michigan Supreme Court, though there is little question now where they will come down when they rule in that case.
Governor Whitmer says she is deeply disappointed in the Court’s decision, and called it political. The decision was a 4 to 3 ruling with the four justices affiliated with the Republican Party taking the position that the law was invalid. The three other justices are affiliated with the Democrat Party. The governor claims that the court’s order won’t become effective for 21 days and that her orders remain in force through at least then. But it is unclear whether that 21 day period is relevant here as that has to do with motions to reconsider a ruling, which apparently isn’t a procedural option in a matter like this where a federal court sends a question.
The Courts decision is interesting because many of the arguments against the governor’s actions focused on whether the 1945 law was applicable for state-wide emergencies. Her opponents said it wasn’t and that the failure to address a statewide emergency in that law was the reason for the 1976 law. Because 1976 law granted such broad authority, the governor’s unilateral authority was limited to 30 days they argued. But, the court instead found that the 1945 law was invalid on its face.