Whitmer wins another round over executive powers. On to the Supreme Court

For months, Michigan Gov. Gretchen Whitmer has relied on a 1945 statute that allows her to extend the state of emergency without approval from the Legislature. GOP lawmakers are challenging that power in court. (Courtesy photo)

Gov. Gretchen Whitmer does indeed have the legal right to continue extending a state of emergency during the coronavirus pandemic without approval from the Legislature, the Michigan Court of Appeals ruled Friday morning.

The 2-1 decision upholds a lower court ruling siding with Whitmer and affirming the constitutionality of the Emergency Powers of the Governor Act, a 1945 law that allows the governor to declare states of emergency unilaterally during times “of great public crisis.” 

Leaders in the Republican-led Legislature have pledged to appeal the ruling to the Michigan Supreme Court. The final decision promises to have a significant impact on Michigan’s political and public health landscape.

“We hold that the Governor’s declaration of a state of emergency, her extension of the state of emergency, and her issuance of related executive orders fell within the scope of the Governor’s authority under the EPGA,” the Court of Appeals ruling reads. “We further hold that the EPGA is constitutionally sound.”

Whitmer first declared a state of emergency for the coronavirus pandemic on March 10, citing authority under both the 1945 law and a separate 1976 statute that requires lawmakers to sign off on an extension after 28 days. 

Michigan’s GOP-led Legislature filed the suit in May after rejecting Whitmer’s request for a second extension of the emergency declaration amid a dispute over whether to continue the governor’s stringent restrictions intended to curb the spread of the virus. Whitmer declared a new state of emergency under the 1945 law and continued to issue executive orders. 

The Legislature argued that the 1945 law should only be used for local emergencies, not statewide ones. Statewide emergencies, lawmakers contend, must be declared under the 1976 law that requires legislative approval.

In oral arguments earlier this month, lawyers for the Legislature argued that without the check on Whitmer’s powers after 28 days, she can “basically exercise fiat power throughout the state of Michigan for such time as she may determine.”

Whitmer has used the state of emergency to issue more than 160 executive orders related to COVID-19, including requirements for wearing masks in public and the stay-at-home order that ended in June. The coronavirus pandemic has sickened nearly 95,000 Michigan residents and killed nearly 6,400 since mid-March. 

The Court of Appeals determined that “there is no restrictive or limiting language” to indicate the 1945 law should only apply to local emergencies, and that the language of the 1976 law clearly says that it’s not intended to “limit, modify, or abridge” the governor’s powers under the broader 1945 law.

“We, however, are simply not at liberty to question or ignore the Legislature’s informed, intentional decision when enacting the EMA to leave the broad language of the EPGA untouched, fully intact, and operational,” the ruling reads. 

Judges Jane Markey and Kristen Kelly upheld Whitmer’s powers, while Judge Jonathan Tukel sided with the Legislature. All three have Republican ties. 

Legislative leaders immediately promised an appeal to Michigan Supreme Court. 

House Speaker Lee Chatfield, R-Levering, wrote on Twitter Friday that the court “got it wrong… we will now go to the MSC.”

“The Court of Appeals ruled today that as long as it’s the opinion of a sitting governor that there’s an emergency, they can take over complete, unilateral control of the state for as long as he or she decides,” Chatfield wrote in a second tweet. “No checks on power. No separation of power. This is unconstitutional.”

Whitmer’s office lauded the decision, calling it “a complete and decisive win.”

“This decision recognizes that the Governor’s actions to save lives are lawful and her orders remain in place,” Whitmer spokesperson Tiffany Brown said in a statement. “This lawsuit is a dangerous and costly attempt to take away the governor’s power to respond to the COVID-19 emergency and save lives.”

As the battle continues in court, a petition drive to repeal the 1945 law may stand a better chance of restricting Whitmer’s emergency powers. Senate Majority Leader Mike Shirkey, R-Clarlake, said this week that organizers have already collected 200,000 of the 340,047 valid voter signatures required to advance the initiative to the state Legislature.  

A recent poll showed that a slight majority of Michigan voters oppose the “Unlock Michigan” petition, which would give the Republican-dominated Legislature the opportunity to repeal the 1945 law without Whitmer’s approval. However, only around 8 percent of likely voters would need to sign the petition in order for the initiative to be approved. The group is aiming for 500,000 signatures to avoid any potential legal challenges. 

Reacting to the court ruling Friday on Twitter, Unlock Michigan spokesperson Fred Wszolek expressed confidence: “It’s ok. We have about 500,000 friends who will take care of this.”

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Reality Check
Fri, 08/21/2020 - 1:32pm

She has no powers. Laws come from legislation. Her executive orders are a circus show just like Trump's executive orders. Our business has been open since early in this shutdown, once we realized it was not actually a pandemic; we are not using masks due to proven scientific fact that they do not affect coronavirus spread when used by general public; We will not be stopped.
The highest power - our sheriff - has our backs; Most of our employees choose to arm themselves for personal protection; We'll call in the michigan militia for protection if we need to as we have our local chapter on 'speed dial'.
America first. Do not give up your liberties. Your freedom does not end where other's feelings and fear begin.

Sun, 08/23/2020 - 4:50pm

You do realize that the judicial branch makes those judgments, not you, right?

Mon, 08/24/2020 - 6:40pm

Would it seem odd or out of sorts to you that a legislature at one given point in time be allowed to give away it's or that power for all future legislatures to follow? If this is a question that you can reason through?

Al Churchill
Mon, 08/24/2020 - 11:22am

Unmitigated ignorance and buffoonery by a person who does not have the courage to attach a name to his total lack of knowledge related to legal history, purpose and the specific law that supports Governor Whitman.
Just not worth trying to explain the great Roman orator and statesman Cicero.

Fri, 08/21/2020 - 2:14pm

A legitimate election put our governor in her position. There are very few Michigan legislative districts where you can say the same about the winner of those seats. Nearly all our legislators were gerrymandered into office, not elected into office. We haven't had a legitimately elected legislature for nearly 20 years in Michigan.

Constitutional checks and balances are a sham in Michigan because of gerrymandering. If I was on the court of appeals, I would have thrown this case out not because of emergency power law nuances but because illegitimately seated legislators don't have check and balance standing.

Sun, 08/23/2020 - 11:01am

Yes. And when we citizens are forced to use a ballot referendum to correct injustices like gerrymandering our Republican legislators try to block that as well! They really hate democracy and the idea of a free vote. A rigged dictatorship is what has always been their goal.
Time to get some adults in at the state level and federal level.

All Good
Fri, 08/21/2020 - 4:02pm

Is anyone surprised? Our laws and government were designed to be reasonable, not to contort to the wishes of extremist Republicans.

Marlene Augst
Sat, 08/22/2020 - 7:25am

Shame on the State Legislature for EVER writing a law that stripped the residents of this State of their Constitutional Right TO A REPRESENTATIVE government. I will be making plans to leave the State as soon as I can.

Oh happy day!
Sun, 08/23/2020 - 4:52pm

Thanks for making my day! 1: You recognize that the courts were following the law. 2: You will leave the State and quickly. I hear Somalia is giving citizenship to anyone who will pay.

Just sayin'
Tue, 08/25/2020 - 6:38pm

Marlene pays your unemployment from her tax dollars so maybe you shouldn't celebrate her leaving.....
Why do democrats always fail to understand basic math and economic structure :)

Sat, 08/22/2020 - 8:08am

She is going to clutch on to as much power as possible. She is a tyrant. Hopefully, if Biden wins, he'll take her off our hands. She will single handedly kill our state's economy just like all of the Covid patients she forced to go back to their nursing homes while sick.

Jake K
Sat, 08/22/2020 - 9:13am

Note that the opposition doesn’t try and change the statutes because then they won’t have the option to use them for their pleasures. Executive orders are only “bad” if your opposition uses them.

Sun, 08/23/2020 - 5:00pm

Exactly! Just like this ridiculous new rule that we have to discuss reopening schools every month. What a dumb idea, waste of time and money. Decide now and keep it that way for the year. Period. GOP, stop being so spineless. It's unsafe to reopen the schools and makes no sense to keep changing policies constantly. I know, sounds redundant, but we're hearing GOP lies and nonsense like a broken record.

Flatten the Curve
Sat, 08/22/2020 - 9:37am

How do you know this is all about, and only about politics? Look at the original excuse Whitmer used to impose thIs upon us, “flatten the curve”. She sold this as a short term sacrifice for the greater good. While most of us were not happy with the original short term shut down we accepted it.
Whitmer has now shown her true (tyrannical) colors and it is all for politics. Whitmer and the DNC has made the calculation that a poor economy in a battleground state such as Michigan hurts Trump. Whitmer will argue “pandemic” but that is a red herring. Take heart good readers, corona virus will go away November 4th.

Sun, 08/23/2020 - 5:10pm

The numbers speak for themselves. Governors and countries that are doing well are doing what Whitmer is doing. It has nothing to do with politics, red states and blue states are failing or doing well based on their leadership and constituent compliance. What happens on November 4, the deep state that works for Trump releases the vaccine? LMAO

If anything, things will continue to spiral downward until January 20 when Biden Harris show national leadership, invoke the Defense Production Act and take other measures Trump is to weak to implement. Why is Trump so weak vis-a-vis the deep state? No other president ever suffered so much from the deep state. Trump needs to lay off the fast food, so he can get some blood flow to his "guts" or whatever seems to be hindering his abilities. I think Obama was right. Trump just isn't up to the job. Obama left him a manual on how to handle a pandemic and Trump failed to read it.

Excuse me?
Sun, 08/23/2020 - 6:19pm

Yesterday there were 1,426 new covid cases! Everyone has become complacent and things are going in the wrong direction again. You can't have a strong economy if you can't control the virus!

Mon, 08/31/2020 - 8:11am

its because of more testing not more spread its hovered around 3 to 4%for weeks and the mask mandate has done almost nothing and those numbers are inflated by double checking positive tests and adding to the numbers of positive percentages

Sat, 08/22/2020 - 10:02am

Instead of simply attempting to curb executive powers with a purely political goal, the state GOP should be working with the governor to mitigate the effects of the pandemic so that the state can possibly move toward a pre-pandemic business, educational, and personal environment.

Sun, 08/23/2020 - 5:15pm

That's a novel approach, but it means we care about each other and our families instead of just ourselves.

Tue, 08/25/2020 - 2:24pm

...law that allows the governor to declare states of emergency unilaterally during times “of great public crisis.”

And who determines when such a thing begins and ends? Also one person? A doctor? An administrator? A bureaucrat? I don't care which party/team/side you are affiliated with, this is a dangerous and short-sighted way to govern. A double-edged sword. Especially when you consider that literally anything can be declared a "public crisis".

Beverly Keenan
Sat, 08/29/2020 - 9:40am

So Big Gretch ordered masks and stay at home? It's working, is it not?

Mon, 08/31/2020 - 8:22am

whatever dont print truth just what tyranny tells ya

Sun, 09/06/2020 - 9:58am

So I read through the comments on this thread and I'm more confused now than before.
First, there was just a giant data set released this week that showed the numbers are virtually identical in states that locked down and enforced masks early on and the states that did very little in extreme mitigation efforts.
Second, it was never supposed to be about positive cases. We were told to flatten the curve in hospitalization rate so they do not become overwhelmed.
From early on we never heard we need to stop the virus. What to know why? You can't control a virus. Masks do nothing....the CDC and WHO both published articles in the last few weeks confirming so.
The virus does not kill children....period. Nine confirmed Covid 19 cases in children under the age of 24 in the US ALL HAD SERIOUS UNDERLYING HEALTH ISSUES. I personally know a 21yr old that was deemed a Covid death. He died in a car accident.
Before speaking on anything please do your homework and criticality think for yourself. Don't take CNN or Fox at face value.

Tom Graham
Fri, 10/02/2020 - 7:33pm

Today the Michigan Supreme Court found that the original 1945 law was unconstitutional, which makes all the Governors Executive orders without legal authority.
Interestingly, this should not be seen as a poor reflection on Whitmer. It should be a reflection on the Legislature that passed such an abomination of a law.