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

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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