The Michigan Supreme Court announced yesterday that it will hear the Mackinac Center Legal Foundation’s case challenging Gov. Gretchen Whitmer’s unilateral extension of emergency powers. The clients are three medical practices that were unable to provide necessary care and a patient who was unable to receive care. While the governor eventually lifted the ban on nonessential medical procedures, the case’s argument against the governor’s use of emergency powers remains relevant and the state’s highest court will now review this important issue.
The case was originally filed in federal court on May 12 and in conjunction with the Miller Johnson law firm. On June 16, Judge Paul L. Maloney determined that the case raised serious questions about Gov. Whitmer’s use of emergency powers, writing “[T]he principles of federalism virtually require this Court to certify these questions to the Michigan Supreme Court.”
Specifically, the case challenges whether Gov. Whitmer violated the law by unilaterally extending a state of emergency. Michigan law requires the Legislature to approve such extensions, but the governor went ahead without that approval. The legality of every executive order the governor has issued since April 30, from arbitrary bans to making decisions for every schoolchild in the state on her own, is in question.
Pressing issues affecting millions of Michiganders are in the balance. For instance, the Legislature recently announced a plan to safely reopen public schools, but Gov. Whitmer created her own safety mandates for public schools with the newly issued Executive Order 2020-142. The Legislature is powerless to change policies the governor creates via executive order and could not prevent controversial orders that limited access to medical care and arbitrarily closed businesses.
Gov. Whitmer maintains that a rarely used law from 1945 permits her to wield emergency powers whenever she alone determines it necessary. The Michigan Supreme Court will consider whether this law violates the Michigan Constitution’s requirement that executive, judicial and legislative powers be distinct and separate, so as to protect the people from abuse of power.
“Policies affecting the lives and livelihoods of Michiganders are at stake,” said Patrick J. Wright, director of the Mackinac Center Legal Foundation and vice president of legal affairs at the Mackinac Center for Public Policy. “While COVID-19 still presents an extraordinary challenge, we have moved long past the point where unilateral decisions are justified. It is time to return to our normal constitutional order, where the separation of powers exist to protect our rights.”
The Michigan Supreme Court agreed to hear the case on June 30. Briefing will occur over the next seven weeks and oral argument will be held on Sept. 2 at 9:30 a.m.