Here’s When Two Cases Challenging Whitmer’s Emergency Powers Will Be Decided

By C.J. Moore, Michigan Advance

The Michigan Supreme Court won’t hear a case that asks just how far Gov. Gretchen Whitmer’s emergency authority goes until after the state Court of Appeals weighs in.

The state’s highest court gave the Court of Appeals until Aug. 21 to make a decision in a case brought against Whitmer by the GOP-controlled state Legislature, which aims to challenge her authority to issue states of emergency and shut down the state via executive orders during the COVID-19 pandemic.

Michigan has more than 66,000 cases and almost 6,000 deaths.

After the appellate court makes its decision, Whitmer and the state Legislature have until Aug. 28, or one week, to file any appeals with the Michigan Supreme Court.

The lawsuit in question — first brought in early May by the GOP-controlled Legislature — sought to challenge the governor’s use of two key Michigan laws to extend states of emergency without their input. Whitmer, a Democrat, has since extended Michigan’s coronavirus-related state of emergency after the Legislature did not reauthorize it.

The current extension expires on July 16.

A ruling in the Legislature’s favor would have struck down Whitmer’s stay-home EOs, something GOP leaders wanted in order to more quickly reopen the state’s economy.

“We are contending that the executive has actually seized the exercise of power that would ordinarily be reserved to the Legislature itself,” attorney Michael Williams from the Troy-based law firm Bush Seyferth PLLC said in arguing on behalf of the Legislature.

Assistant Solicitor General Christopher Allen, who represents Whitmer, countered that “there’s no disruption to that body’s specific power to legislate. The plaintiffs only seek to withhold the governor from doing something. Their full ability to continue to act remains.”

Michigan Court of Claims Judge Cynthia Stephens tossed the lawsuit in late May, calling the legal challenge “meritless” and writing in a 25-page opinion that Whitmer retains the authority to issue such EOs under the Emergency Powers of Governor Act (EPGA), a 1945 law.

However, Whitmer did not have the authority to re-declare a state of emergency under the 1976 Emergency Management Act (EMA), Stephens noted.

Although the suit was brought by the Legislature, both the House and Senate Democratic caucuses have filed amicus briefs siding with the governor.

The Legislature appealed that decision and hoped the case would be expedited to the Michigan Supreme Court. But justices in early June decided 4-3 they would not take the case without the Court of Appeals hearing it first.

It’s one of two cases that have emerged on the matter of Whitmer’s emergency decision-making during the COVID-19 pandemic.

A separate, second lawsuit filed in May by the free-market Mackinac Center Legal Foundation calls into question the constitutionality of Michigan’s state of emergency laws and also asks if Whitmer had the authority to extend pandemic executive orders beyond that April 30 date.

State Supreme Court Justices plan to hear oral arguments for that case on Sept. 2, after the Court of Appeals issues a ruling in the aforementioned Legislature-brought case.

Meanwhile, there are two ballot measures that would strip the governor’s powers. Unlock Michigan, a group with ties to the Michigan Republican Party, on Monday got petition language approved by the Board of State Canvassers. Another group is spearheaded by retiring U.S. Rep. Paul Mitchell (R-Dryden).