Seyfarth Synopsis: The Michigan Supreme Court recently ruled that Michigan Governor Whitmer lacked the authority to declare a “state of emergency” or a “state of disaster” beyond April 30, 2020, and that the authority delegated to the Governor under the Emergency Powers of the Governor Act was unconstitutionally broad.
Midwest Institute of Health, PLLC, and other healthcare organizations brought an action against the Governor of Michigan, the Michigan Attorney General, and the Michigan Department of Health and Human Services Director in the United States District Court for the Western District of Michigan, challenging the Governor’s Executive Order (EO) No. 2020-17, which prohibited healthcare providers from performing nonessential procedures. The order was issued by Governor Gretchen Whitmer as part of a series of executive orders in response to the COVID-19 pandemic.
The court determined that certain issues raised in the case involved unsettled areas of state law, such that certification of those questions to the Michigan Supreme Court was appropriate. The federal district court certified the following questions to the Michigan Supreme Court:
- Whether, under the Emergency Powers of the Governor Act (EPGA), MCL § 10.31, et seq., or the Emergency Management Act (EMA), MCL § 30.401, et seq., Governor Whitmer has the authority after April 30, 2020 to issue or renew any executive orders related to the COVID-19 pandemic.
- Whether the Emergency Powers of the Governor Act and/or the Emergency Management Act violates the Separation of Powers and/or the Non Delegation Clauses of the Michigan Constitution.
In its decision, the Michigan Supreme Court unanimously held that, as to the first question, the Governor did not have authority after April 30, 2020 to issue or renew executive orders related to the COVID19 pandemic under the EMA.
Further, in a 4-3 decision, the Michigan Supreme Court held that the second certified question was partially answered in the affirmative: The Governor did not possess the authority to exercise emergency powers under the EPGA because the act unlawfully delegates legislative power to the executive branch and allowed the executive branch to exercise those powers indefinitely, in violation of the Michigan Constitution.
This decision is expected to have wide-ranging effects on Governor Whitmer’s Executive Orders related to COVID-19, which number in the hundreds. While the decision is not effective until 21-days from issuance, the Governor’s office has sought clarification as to how long the Executive Orders remain in place. The Governor argues that the Order remain effective until at least October 30, 2020, but Michigan’s Attorney General issued a statement on October 2, 2020 indicating that he would cease enforcement of the Orders immediately.
On October 5, 2020, the Michigan Department of Health and Human Services issued an Emergency Order reinstating many of the restrictions put in place by the Governor’s Orders, including limits on gatherings, requirements to wear masks, protections for organized sorts, and other items.
