Tuesday 6 October 2020

State Supreme Court Rules Whitmer's Emergency COVID Powers Violate Constitution

 Democratic Michigan Gov. Gretchen Whitmer has had no legal authority to keep residents under her thumb for the past five months, according to a Michigan Supreme Court ruling issued on Friday.

However, Whitmer said she has no intention of abiding by the ruling and vowed to find another way to keep lockdowns in place.

Because of procedural questions surrounding the ruling, its impact on the various orders Whitmer has issued was uncertain, according to the Detroit Free Press.

“My opinion would be that it’s binding. Because it’s not a Michigan [state court] case there aren’t going to be any injunctions or the like. But it is a decision of the Michigan Supreme Court,” said Wayne State University Law School professor Robert Sedler. “The existing stay-at-home orders would not be valid. … This is going to have quite an impact.”

Whitmer said in a statement Friday that she was right and the court was wrong.

“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,” she said.

“Right now, every state and the federal government have some form of declared emergency. With this decision, Michigan will become the sole outlier at a time when the Upper Peninsula is experiencing rates of COVID infection not seen in our state since April.”

She said she believed the decision would not take effect for another 21 days, and vowed to find the authority to put in place some of the measures that the emergency declarations — declarations which the court ruled invalid — were used to implement.

The core of the court’s 4-3 ruling was that Whitmer did not have the authority under state law to issue any of her pandemic-related emergency declarations since April 30. That was the last date when the state’s legislature allowed Whitmer to declare an emergency. Whitmer has said that because of the state of emergency, she could order lockdowns.

Two state laws, the Emergency Management Act and the Emergency Powers of the Governor Act, frame the rules for declaring a state of emergency in Michigan.

“The governor’s declaration of a state of emergency or state of disaster may only endure for 28 days absent legislative approval of an extension. So, if the Legislature does nothing, as it did here, the governor is obligated to terminate the state of emergency or state of disaster after 28 days,” said the court’s majority opinion, written by Judge Stephen Markman.

“[U]nder the EMA, the Governor only possessed the authority or obligation to declare a state of emergency or state of disaster once and then had to terminate that declaration when the Legislature did not authorize an extension; the Governor possessed no authority to redeclare the same state of emergency or state of disaster and thereby avoid the Legislature’s limitation on her authority,” the ruling said.

“We conclude that the Governor lacked the authority to declare a ‘state of emergency’ or a ‘state of disaster’ under the EMA after April 30, 2020, on the basis of the COVID-19 pandemic.

“Furthermore, we conclude that the EPGA is in violation of the Constitution of our state because it purports to delegate to the executive branch the legislative powers of state government — including its plenary police powers — and to allow the exercise of such powers indefinitely,” the opinion said.

“As a consequence, the EPGA cannot continue to provide a basis for the Governor to exercise emergency powers.”

The ruling added that no single individual should have the vast power Whitmer has wielded.

“Although singular assertions of governmental authority may sometimes be required in response to a public emergency — and the present pandemic is clearly such an emergency — the sheer magnitude of the authority in dispute, as well as its concentration in a single individual, simply cannot be sustained within our constitutional system of separated powers,” it said.

Republican House Speaker Lee Chatfield called the ruling a victory.

“The people of this state have been denied a voice and a seat at the table in decisions that have impacted every facet of their lives and their futures over the past eight months. They deserve to have their representatives bring their voice and their concerns into this decision-making process,” he said in a media release on Friday, according to WILX-TV.

“The Legislature was there in March and April to work with the governor to improve her executive orders and help keep Michigan healthy and moving forward together. It worked well, just like the authors of our Constitution intended.

“Months later, we are still ready to work alongside Gov. Whitmer in a bipartisan way to improve the state’s response to this pandemic.”

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