Michigan Supreme Court questions Whitmer’s ‘profound’ power during pandemic

LANSING — Michigan Supreme Court justices grilled Gov. Gretchen Whitmer’s attorney for more than an hour and a half Wednesday, questioning the limits of her authority to take emergency actions without legislative approval during the ongoing COVID-19 pandemic. 

“It’s probably the largest claim of executive power that any governor has ever made in the history of Michigan,” said Justice David Viviano, a Republican appointee who has functioned as a swing vote in several recent high-profile cases. “Is there any precedent for this?”

Whitmer’s emergency orders, which she argues have saved lives, have spurred several lawsuits. But the case that reached the state’s highest court Wednesday was the first opportunity for justices to consider the constitutional issues raised by critics who contend the governor’s unilateral actions run counter to principles of separation of powers in government. 

The seven-member court, which consists of four Republican-affiliated justices and three with Democratic ties, got the case when U.S. District Judge Paul Maloney asked them to weigh in on her powers as he considers a separate lawsuit from doctors. 

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That case alleges Whitmer abused her authority by imposing temporary restrictions on “non-essential” medical procedures from March 21 to May 29 and then issuing new workplace protocols that remain in place. 

Before he decides that case, Maloney wants the Michigan Supreme Court to rule whether Whitmer had the authority to continue a state of emergency beyond April 30, when Republican lawmakers declined her request for a legislative extension. 

A 1976 law requires legislative approval to extend an emergency beyond 28 days, but Whitmer’s attorneys argue a separate 1945 law gives her broad authority to continue the state of emergency given the coronavirus pandemic. A Michigan Court of Claims judge and a Court of Appeals panel have so far agreed with the governor’s position, ruling for her in a separate lawsuit filed by the GOP-led Legislature. 

Michigan Supreme Court justices peppered Deputy Solicitor General Eric Restuccia with queries over what Viviano called the “extraordinary power” Whitmer has wielded over the past six months. 

Viviano questioned whether the 1945 law was envisioned as a way to respond to pandemics or other public health emergencies, which are addressed in other laws. The law gives the governor emergency authority to protect “public safety” and was adopted in response to the 1943 race rebellion in Detroit, Viviano said. 

Restuccia, representing Whitmer, argued that the health crisis is the sort of public safety threat that warrants emergency action by the governor. As a deliberative body, the Legislature would not be able to respond as quickly to shifting dynamics, including the potential threat of a second COVID-19 wave this fall or winter, he contended. 

“It’s as if there’s a fire raging across Michigan and the governor is seeking to contain it,“ Restuccia said. “And while there’s been some success with these firefighters trying to contain the fire… the Legislature and the plaintiffs are telling us there is no emergency, as if the firefighters can come home. But if they do, it will place our community in jeopardy.”

Michigan has confirmed more than 107,000 COVID-19 cases and 6,500 deaths since March, although case counts have declined since peaking in late April. If the pandemic has not been as bad as some experts predicted, that’s because of Whitmer’s actions, Restuccia argued. 

“That’s a viewpoint that’s difficult to prove but easy to assume,” Viviano responded during his 20-minute exchange with the governor’s attorney. 

Justice Richard Bernstein, a Democratic appointee, said he knows three people who have died of COVID-19 and understands the gravity of the pandemic. But also noted the “profound” impact Whitmer’s emergency orders to shutter businesses, limit travel and require masks have had on citizens and their way of life. 

“Once rights are forfeited or once rights are taken, they’re difficult if not impossible for people to reclaim them or get them back,” he said. 

Bernstein noted that Whitmer’s “safe start” plan for restarting the economy does not contemplate lifting all regulations until “the number of infected individuals falls to nearly zero” and there is widespread access to effective COVID treatments or vaccines. 

“Who decides when it comes to an end?” Bernstein asked.

Restuccia noted that Whitmer is consulting with public health experts and said her individual orders are subject to court challenges and judicial review. Additionally, he said, the Legislature could adopt new laws to curb her authority or overturn her orders, provided there is a supermajority to override a likely Whitmer veto.

But ultimately, “the buck stops with her,” Restuccia said. “It’s subject to review, and the Legislature can override… But she’s the decision maker in the end, and she’s held to account on that decision.”.  

While the Republican-led state Legislature has appealed its own lawsuit to the Michigan Supreme Court, the questions Maloney posed to justices gives them the opportunity to issue an opinion that could establish a precedent that would control other cases. 

“This is the big case, under state law, related to whether the governor has executive order powers after April 30 or not,” said Patrick Wright, director of the Mackinac Center Legal Foundation, which represents medical providers in the case. 

In a Tuesday conference call with reporters, Wright called the lawsuit an important test for the constitutional principle of separation of powers. After the Legislature declined to extend an emergency declaration giving Whitmer the power to issue pandemic orders, they were entitled to a voice in the decision-making process, he said.

“This is not a choice between either working to try and prevent COVID deaths or not, it is a question of who gets to make the decisions and how,” Wright said. 

Wright said he’s hoping for a decision in three to four weeks.

The Michigan Supreme Court is not obligated to answer Maloney’s questions — and it shouldn’t bother, according to the governor’s attorneys, who argue the underlying lawsuit is moot because she lifted her temporary restrictions on non-essential medical procedures that form the basis of the federal lawsuit. 

Regardless, “the governor is not acting under an improper delegation of legislative authority,” Restuccia wrote in a legal brief. “She is executing emergency response, as authorized, constrained, and guided by law. The nature of governance, and of emergencies, requires it.”

Whitmer’s March order to temporarily prohibit elective surgeries and other non-essential medical procedures was designed to “reduce the strain” on the state’s health care system as the coronavirus battered the state and crowded some hospitals in metro Detroit, she said at the time.

But medical providers who are suing Whitmer contend her order created confusion and uncertainty over what constituted an essential procedure, leading them to delay or deny needed treatments for fear of prosecution. 

In one case, a patient who had been treated for kidney stones needed stents removed but the “procedure was deemed illegal,” said Jordan Warnsholz, a physican assistant with the Wellston Medical Clinic in Manistee County.

The patient got a urinary tract infection, which led to a kidney infection, eventually requiring emergency surgery and a two-week stay in critical care, he said. 

“It’s really a shame,” Warnsholz told reporters Tuesday ahead of the oral arguments, suggesting his patient’s infections could have been prevented with a routine procedure. 

Whitmer’s order barring non-essential medical procedures also had a detrimental effect on health care institutions, which typically derive most profits from elective surgeries and screenings like colonoscopies, said Dr. Randal Baker, president of Grand Health Partners in Grand Rapids.

“They’re not able to do that, so the very institution that you want to help the COVID patients, you’re gouging in the back, you’re gutting it at the same time this is happening,” he said. “Unbelievable.”