Michigan Gov. Gretchen Whitmer | Wikipedia Commons

Gov. Gretchen Whitmer’s exec­utive orders are no longer legally enforceable, according to a Michigan Supreme Court ruling on Monday. The ruling follows the state Supreme Court’s decision from nearly two weeks ago which estab­lished that the law Whitmer used for her emer­gency powers vio­lates the Michigan Constitution.

Justice Stephen Markman, a dis­tin­guished vis­iting pro­fessor of pol­itics at Hillsdale College who has taught con­sti­tu­tional law at Hillsdale since 1993, wrote the majority opinion in the case, saying that the Emer­gency Powers of Gov­ernor Act of 1945 vio­lated the state constitution’s non­del­e­gation doctrine.

“We con­clude that the EPGA is in vio­lation of the con­sti­tution of our state because it pur­ports to del­egate to the exec­utive branch the leg­islative powers of state gov­ernment,” Markman wrote in his opinion. “As a con­se­quence, the EPGA cannot con­tinue to provide a basis for the gov­ernor to exercise emer­gency powers.”

Since March, Whitmer has relied upon the 1945 law and the Emer­gency Man­agement Act of 1976 to declare 140 COVID-19-related exec­utive orders. The Michigan Supreme Court ruled 7 – 0 against Whitmer’s use of the 1976 law for her emer­gency powers, as the law pro­vided that the gov­ernor must have leg­islative approval in order to extend a state of emer­gency after 28 days.

The ruling striking down the Emer­gency Powers of Gov­ernor Act was a nar­rower 4 – 3 decision. Michigan Supreme Court jus­tices are elected on a non­par­tisan ballot but are nom­i­nated by parties. The four Repub­lican-nom­i­nated Jus­tices ruled against Whitmer, while the three Demo­c­ratic-nom­i­nated Jus­tices held that her use of emer­gency powers was constitutional.

“With a case load exceeding 200 cases a month, it’s usually unpre­dictable which of our deci­sions are going to be given media attention,” Markman told the Col­legian. “It was not par­tic­u­larly sur­prising that this was such a case.”

The plain­tiffs in the case were four west Michigan medical providers and a patient seeking knee surgery. The lawsuit was filed on behalf of the plain­tiffs by the Mackinac Center for Public Policy in May, when an exec­utive order banned elective medical procedures.

“We want to have a system of gov­ernment that works according to our con­sti­tu­tional system,” Mackinac Center Vice Pres­ident for Legal Affairs Patrick Wright said. “A single person ruling a state of 10 million people is not freedom-inducing. What the gov­ernor was proposing was counter to that and, as we felt and the Supreme Court agreed, unconstitutional.”

Fol­lowing the Supreme Court’s first decision on Oct. 2, Whitmer released a statement in which she called the decision “deeply dis­ap­pointing,” saying that she “vehe­mently dis­agrees with the court’s inter­pre­tation of the Michigan Constitution.”

In the same statement, she also claimed that her exec­utive orders remained in effect for another 21 days after the ruling. Two days later, however, Attorney General Dana Nessel announced that she would no longer enforce any exec­utive orders issued under the uncon­sti­tu­tional 1945 emer­gency powers law.

The nul­li­fi­cation of Whitmer’s emer­gency powers was further settled earlier this week when the Supreme Court con­cluded that “the exec­utive orders issued under [the 1945 law] are of no con­tinuing legal effect.”

The court’s decision “leaves open many avenues for our gov­ernor and leg­is­lature to work together in a coop­er­ative spirit and con­sti­tu­tional manner to respond to the COVID-19 pan­demic,” the order said.

The ruling came from a second lawsuit brought in May against Whitmer by the Michigan leg­is­lature. The effort was led by Senate Majority Leader Mike Shirkey and Speaker of the House Lee Chat­field. Shirkey praised the Supreme Court’s rulings.

“The Michigan Supreme Court opinion and their follow up ruling pro­vides  much needed clarity regarding the 1945 Emer­gency Gov­ernors Man­agement Act statute,” Shirkey told the Col­legian. “It was a huge victory for Michigan cit­izens, upholding our Con­sti­tution and the very important and fun­da­mental concept of balance of powers.”

Both Shirkey and Chat­field have con­veyed their desire to work with Whitmer now that she can no longer act uni­lat­erally in dealing with the pandemic.

“It’s time for us to get together with equal posi­tions at the table and get back to a regular ordered leg­islative process,” Shirkey said in an interview with Radio Free Hillsdale.

Whitmer has since relied on the Michigan Department of Health and Human Ser­vices to issue orders similar to her original man­dates. Employing a 1918 law enacted after the Spanish Flu, MDHHS Director Robort Gordon issued an emer­gency public health order last Friday that rein­sti­tuted mask man­dates and restric­tions on gath­ering sizes and restaurant capacity.

While lawyers at the Mackinac Center said they see these new pro­vi­sions as a potential way for Whitmer to get around the Supreme Court rulings, they also noted that the new orders are much less bur­densome than the earlier ones.

“A lot of the things that the gov­ernor was doing in super­seding certain statutes aren’t in the MDHHS orders,” Wright said. “So whether or not they are legal, they are cer­tainly more narrow than what the gov­ernor was doing before.”

Though acknowl­edging that the new orders from the MDHHS do not have nearly the same broad reach of power, Shirkey expressed his frus­tration with Whitmer’s con­tinued attempt to bypass the legislature.

“Now it appears our gov­ernor is attempting to ‘painfully stretch’ the Public Health Code to con­tinue her rigid control over people and com­merce in Michigan,” he said. “These actions deserve to be chal­lenged. Uni­lateral gov­er­nance has no place or role in America or Michigan.”