Michigan Supreme Court kicks GOP challenge of Whitmer powers to lower court

Michigan Gov. Gretchen Whitmer, shown here with DTE Energy Chairman Gerry Anderson, is being challenged by state Republicans over her use of executive powers during the coronavirus pandemic.

The Michigan Supreme Court won’t allow the state Legislature to bypass the Court of Appeals in its lawsuit challenging the constitutionality of Gov. Gretchen Whitmer’s emergency powers, the court wrote in a 4-3 ruling released Thursday. 

The one-paragraph order was followed by 18 pages of concurrences from Justices Richard Bernstein and Elizabeth Clement and dissents from Justices Stephen Markman, David Viviano and Brian Zahra. Chief Justice Bridget McCormack and Justice Megan Cavanagh also opted not to bypass the Appeals Court.

Justices in Michigan are nonpartisan but nominated by political parties. The majority opinion was formed by three Democrat-nominated justices and Clement, the sole Republican-nominated one. Three Republican-nominated justices dissented.

“The significance of this case is undeniable,” Bernstein wrote in a concurring opinion. He added that the most contentious of the orders stemming from Whitmer’s powers — the stay-at-home order — has now been lifted.

“With many of the restrictions on daily life having now been lifted, our eventual consideration of these issues must receive full appellate consideration before our court can most effectively render a decision on the merits of this case.”

The ruling comes amid ongoing acrimony over Whitmer’s use of emergency powers amid the coronavirus pandemic, which has killed nearly 5,600 people. 

Whitmer has issued more than 100 executive orders since March, closing most businesses and limiting travel and social contact in the state in an effort to limit the spread of the virus. Republicans contend many of the orders were overreaching and they should have been consulted.

In the lawsuit first filed in early May, the Republican-led Michigan House and Senate argue that Whitmer has exceeded her executive authority by extending the state of emergency put in place due to the coronavirus without their approval. 

Whitmer contended she has the power to do so under a 1945 law that doesn’t require legislative sign-off, in addition to the 1976 law that’s traditionally used for states of emergency and which requires lawmakers approve the declaration every 28 days. The state of emergency allows Whitmer to issue executive orders such as the stay-at-home order and other orders restricting evictions, water shutoffs and more. 

Lawmakers first extended Whitmer’s emergency declaration, but said they wouldn’t do so again without a promise from the governor that she would agree to two one-week extensions. Whitmer declined and decided to let the emergency declaration lapse, then issue two new ones — one under the same 1976 law and another one under the 1945 law.

A Court of Claims judge sided with Whitmer late last month by upholding the validity of the 1945 law, and the Legislature appealed the decision, asking the high court to bypass the Court of Appeals to expedite the process.

In a concurrence written by Clement, she, McCormack and Cavanah argued the Legislature didn’t meet the requirements for bypassing the Court of Appeals by demonstrating the “substantial harm” that would occur to the Legislature if the decision was delayed.

Markman argued the court had an imperative to take up the case because it is an “an issue of the greatest practical importance” to all 10 million Michiganders is at stake as they live under a state of emergency “in which both the lives and the liberties of its people are being lost each day.”

In his dissent, Viviano chastised his colleagues for “nonchalantly [pushing]  it off for another day.” The majority decided the case should first get full consideration before the lower court before coming to them — an eventuality the justices seemed to acknowledge.

“Ordinarily, I would agree with this approach,” Viviano wrote. “But this is no ordinary case.

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Wait your turn
Thu, 06/04/2020 - 9:58pm

Um, yeah, GOP, you can't take cuts.

Fri, 06/05/2020 - 5:10am

One important catastrophe not being covered enough is widespread ID Theft, fraudulent unemployment claims filed, in Michigan and across the country. What are the state and federal governments doing about it? How are they protecting citizens, holding companies responsible for data breaches?

Moreover, a teenagers who worked a couple days a week making minimum wage during school before the pandemic are now collecting almost $800 a week on unemployment, collected like $7,000 so far.

Things are messed up. No wonder everyone is angry.

Fri, 06/05/2020 - 1:21pm

If I were a teenager with $7000 I would probably spend it.
Golly...you think that might help the economy?...
Not everyone is angry.

Speaking for Myself
Fri, 06/05/2020 - 9:52am

Hair Salon owners, Spa owners, Nail Salon owners are all small businesses that are continuing to be harmed and many will go out of business and their families will suffer greatly. The justices pushed this off because the State is opening up???? That is no reason to not make a decision based on the merits of the case. Many times in emergencies they expedite the process and go right to the ultimate arbiters of grievances. By kicking it down to the court of Appeals, will only delay the inevitable, regardless of the decision by the Court of Appeals, either side will ask for it the decision to be overturned by the Supreme Court. Meanwhile all of these small business men and women will continue to suffer under this vindictive governor's terrible decision. FYI, has someone asked her whether she has had her hair professionally done? Has the Bridge asked this question of her? I am curious because it would be illegal under her order and as we all know NO ONE is above the law.

Fri, 06/05/2020 - 10:14am

And while they play around with their delaying games business looses millions, if not billions of dollars. I can't run my business until the 6 foot distancing law is removed. I will be out of business in a month or two if this is not lifted.

Fri, 06/05/2020 - 1:23pm

Mike, I have passed this information on to the virus but it seems as though it doesn’t care.

Mark salawage
Fri, 06/05/2020 - 9:49pm

No one seem to care about the virus and how deadly it was last week now that they have a new crisis to hype up

middle of the mit
Fri, 06/05/2020 - 11:59pm

What I would like to know is how the unemployment rate dropped so dramatically, when conservatives were so sure that workers wouldn't come back to work because of the generous unemployment benefits?

Isn't there some cognitive dissonance involved?

Does conservative logic ever hurt your brain?

It hurts mine.

Spock would say: "There is no logic in this conclusion"

I concur!

Sat, 06/06/2020 - 1:15am

After seeing how terrible people are, I'm staying home and keeping my money in my pockets. I've never been healthier!

Sat, 06/06/2020 - 9:54am

"The justices pushed this off because the State is opening up????" Nope.
Any decent lawyer could tell you that Whitmer manipulated the result at the Supreme Court by pulling back just enough while, of course, completely maintaining her self-appointed autocratic powers to order you when and how to wipe. As a retired commercial bankruptcy attorney, I know a whole lotta "the virus doesn't care" folks will be crying when the economy collaspses, their 401ks are gutted and their defaulted mortgages exceed the new fair market value of their homes. 2008-2010 was just practice.

middle of the mit
Sun, 06/07/2020 - 10:08pm

That is funny! The only time I wipe is when I need to, and the only person that tells me that .......is me. What version of 1984 are you living in? How many meat packers are already crying COVID-19 when they have been opened all along? Haven't you noticed the price of beef? While the ever so efficient private sector can't figure out how to transfer from commercial to the consumer, so they are slaughtering cows instead and not sending them to market. Isn't that wasteful?

If you were a corporate bankruptcy attorney, wasn't your job gutting peoples pensions and 401K's for the benefit of investors and owners?

This is also what REAL investors want. Cheap prices while they purchase the country.

Who did you work for? Not the employee or the citizen or the 401K holder. I wonder how their retirement is going. Do you?

The only people that are holding America back are those that are hoarding wealth. You have to face that fact. It is undeniable......well......some still deny it.

But they are either willfully ignorant or just plain amoral.

Sun, 06/07/2020 - 8:45pm

Maybe it is time for defunding the state government.

Pilot Dave
Sat, 08/15/2020 - 6:31pm

When our one term Governor first drove a stake though Michigan’s economic heart, it was clearly based on parison politics…. Proof: In March, she was being eyed by the DNC as the VP candidate with former VP Bidan…. so she came down hard while other states, Arkansa, the Dakota’s, etc had zero lock down and as of today, the lowest deaths from the Wuhan Coronavirus… She made it criminal for me to walk out my door, by myself, on my own property, step onto my own fishing boat (Still alone) and catch a fish for dinner, but recreational marijuana buyer liked up by the thousands to buy their week. No masks, no “social distancing” - Simple political insanity by our Governor. After all, Millennials got her elected in 2018 because recreational weed was on the ballot, and they do not vote “R”… Since then, she opens some things up and closes other that she already opened…

Yes, where can I sign this recall petition? The real paper, not fake online?