Michigan Supreme Court strikes down governor’s continued state of emergency

The Michigan Supreme Court ruled that Gov. Gretchen Whitmer (D) does not have the authority to continue the state of emergency in Michigan.

The court said neither the Emergency Management Act from 1976 nor the Emergency Powers of the Governor Act from 1945 dictate how states of emergency are declared and handled in Michigan, and that Whitmer does not have the power to continue the state of emergency under either law. Therefore, Whitmer did not have the authority to extend her initial state of emergency past April 30, when it was set to expire. 

Whitmer had extended the state of emergency to the end of April by executive order after the Republican-led state legislature moved forward with a bill preventing her from renewing the original declaration during the coronavirus pandemic. 

“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,” wrote Justice Stephen Markman in the majority opinion. 

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

The ruling comes after a U.S. district judge found that a federal case needed additional input from the states over Whitmer’s authority. The case was initially brought by four Michigan medical providers and a patient seeking a knee surgery in May, when the state of emergency banned elective procedures.

Still, the Friday ruling leaves Whitmer with an array of options, including possibly issuing a state of emergency under different laws. 

“Our decision leaves open many avenues for the Governor and Legislature to work together to address this challenge and we hope that this will take place,” reads a footnote in the ruling.

Whitmer panned the decision Friday, saying the state of emergency was necessary to protect Michiganders.

“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 in a statement. “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.”

Michigan currently has had nearly 140,000 confirmed coronavirus cases, and over 7,100 people have died in the state.