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Michigan Supreme Court ruling limits governor’s emergency powers

Michigan Supreme Court ruling limits governor’s emergency powers

5.10.2020 | M. Tyler Gillett | U. Pittsburgh School of Law, US OCTOBER 3, 2020 10:27:05 AM | 75

The Michigan Supreme Court ruled Friday that Governor Gretchen Whitmer did not have the authority to extend her executive orders regarding the Covid-19 pandemic after April 30.

The decision in the case comes as part of a lawsuit by three medical centers against the governor, challenging an executive order that prohibited non-essential medical procedures. That lawsuit was brought in a federal district court; however, the district court found that the suit involved unsettled areas of state law and requested that the state supreme court clarify two questions: first if the Emergency Powers of the Governor Act (EPGA) or the Emergency Management Act (EMA) granted governor Whitmer authority to extend or renew pandemic-related executive orders and second if either act violated the Michigan state constitution.

In addressing the first question, the court determined that the Governor could not extend her executive order, holding that the EMA only allowed the governor to declare an emergency once. Since the legislature did not authorize an extension of the emergency, the governor must terminate the declaration. Regarding the second question, the court held that the EPGA represented an unlawful delegation of legislative power to the executive branch, and because that delegation of power was not separable from the rest of the law, the EPGA must be struck down in its entirety.

Governor Whitmer issued a statement condemning the ruling, calling it “deeply disappointing.” She did note, however, that the “ruling does not take effect for at least 21 days, and until then, my emergency declaration and orders retain the force of law.”

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