State Cobbles Together Another COVID-19 Response After Court Upends Governor's Emergency Powers

Oct 15, 2020

Democratic Governor Gretchen Whitmer’s emergency powers were upended the first Friday in October when the Michigan Supreme Court declared a 1945 law unconstitutional. The ruling, which the state Supreme Court announced this week took immediate effect, sent the state government into a tailspin.

Under Whitmer’s leadership Michigan plummeted from its place as the state with the third highest COVID-19 infections per 100,000 people, to the bottom third.

Despite polls that show a majority of Michiganders approve of the Governor’s response, she’s faced criticism at protests staged by conservative political groups and Republicans in the state legislature.

Now, state lawmakers and the governor are determining who will have the authority to create new COVID-19 protections.

The Ruling

In a 4-3 ruling, the Michigan Supreme Court ruled the 1945 law—the authority that underpinned the Governor’s hundreds of executive orders—was unconstitutional.

The court was asked to issue an advisory opinion by a Federal Court, and ruled that while “singular assertions of governmental authority” were sometimes necessary to respond to emergencies, and “the pandemic is clearly such an emergency” the governor did not have the right to extend the state of emergency without additional authorization from the Legislature beyond April 30th, and the 1945 law that underpinned her executive orders was in violation of the state constitution for delegating powers from the legislative branch to the executive branch.

The ruling cast uncertainty on the state of emergency, the statewide mask mandate, and crucial public health measures like limitations on the size of gatherings aimed at limiting the spread of the coronavirus.

After the initial ruling the Republican Senate Majority Leader Mike Shirkey (R-Clarklake) said he wouldn’t support a mask mandate, and in a conversation with Bridge Magazine said while he encouraged mask-wearing and relying on CDC guidelines, the state should instead rely on “loving and trusting people to do the right thing” and "We need to now transition from a public health emergency to managing and learning to live with this virus…"

Later the director of the Michigan Department of Health and Human Services stepped in with emergency statewide orders that mirrored some of the key COVID-19 precautions in the original executive orders like masks and limitations on gathering sizes.

But Republicans say other orders like that from the executive branch without legislative input is still an “end-run around the Supreme Court” proving the governor “couldn’t care less about the ruling.”

In a press call, Speaker of the Michigan State House of Representatives Lee Chatfield (R-Levering) said the redundancy of another executive branch order didn’t have much merit.

“We have to negotiate. So, I don’t think now is the time to circumvent the law again. Now is the time to finally accept our hand in partnership and begin negotiating with the legislature,” said Chatfield.

A Swell Of Legal Challenges

Governor Whitmer is not alone. Across the country dozens of cases are challenging governors’ powers to respond to the pandemic according to the National Conference of State Legislatures.

Richard Primus is a professor of constitutional law at the University of Michigan. He said challenges against governors have been all over the map. 

In Michigan—the ruling wasn’t against the executive orders; it was against the 85-year-old law which Primus said was weak anyway. He says it’s much less likely that even a “relatively ideological” court would rule against the state’s ability to issue public health orders, under a separate, more specific 1978 law. 

“It would be very surprising and much more aggressive of the courts to say that that was invalid. To say that that was invalid would essentially leave Michigan without the capacity to respond to epidemics,” said Primus.

Patchwork Response

Now public health officials across the state are preparing for a patchwork response—with orders coming from statewide agencies and others from county health departments.

Linda Vail is the Public Health Officer for Ingham County—home of the State Capitol.  

“I was stunned. I was shocked. Basically, now it’s like ‘What do we do to put back together all of the pieces that were in place to keep people safe and open the economy and all of those things?’” said Vail.

If the state of emergency ends, some federal funding that helps health departments pay for things like contact tracing or non-congregate shelters—could go away. Vail said the attitude of some state Republicans, that we need to learn to live with COVID-19, is naïve.

“Well, what about the thousands of people in this state that died? They didn’t figure out a way to just live with it…did they? I mean you cannot just say ‘we need to learn to live with this.’ People are dying.”

For now, public health officials can make some stopgap measures, but Republican state lawmakers and Governor Whitmer will be forced to work together on a state of emergency and executive orders not subject to the public health code.

Tuesday, lawmakers in the state legislature met into the early morning passing bills that would extend unemployment benefits for as long as 26 weeks, extend the ability of government groups to meet electronically, offer liability protections to businesses and establish requirements for nursing home recovery centers.