It sounds like Der Gretchenführer doesn’t like what the state courts did to her Authoritah!

Michigan State Supreme Court strikes down Whitmer’s emergency powers.

In a landmark ruling with far-reaching implications, the Michigan Supreme Court decided Friday that Gov. Gretchen Whitmer violated her constitutional authority by continuing to issue orders to combat COVID-19 without the approval of state lawmakers.

The court, in its 71-page ruling, found that Whitmer did not have authority after April 30 to issue or renew any executive orders related to the pandemic under the 1976 Emergency Management Act.

The justices also found Whitmer did not possess the authority to exercise emergency powers under the 1945 Emergency Powers of the Governor Act because the act violates the Michigan Constitution.

The justices also found Whitmer did not possess the authority to exercise emergency powers under the 1945 Emergency Powers of the Governor Act because the act violates the Michigan Constitution.

Whitmer said Friday she “vehemently” disagreed with the court’s ruling, which she said made Michigan an “outlier” among the vast majority of states that have emergency orders still in place.

The governor said the ruling doesn’t take effect for 21 days and, even after that, her orders will remain in place through “alternative sources of authority.”

The ruling appears to leave intact orders issued by the Department of Health and Human Services, which have addressed some of the same subject matter contained in Whitmer’s executive orders.

“I want the people of Michigan to know that no matter what happens, I will never stop fighting to keep you and your families safe from this deadly virus,” she said.

The Mackinac Center for Public Policy, which filed the lawsuit challenging Whitmer’s powers, contends the ruling goes into effect immediately.

“As our state continues to face the challenges that come with COVID-19, all of the people of Michigan will have a voice in the decisions that will impact our state in the years to come,” said Patrick Wright, vice president for legal affairs at the Mackinac Center.

But if the administration files a motion for rehearing, the implementation of the order is paused for 21 days while the Supreme Court considers the motion, he said.

The ruling makes moot any of Whitmer’s executive orders issued after April 30, which would affect all but seven remaining orders, Wright said.

“If there are other laws or administrative regulation the governor can use — be they the Department of Health and Human Services or another agency — those are still in place,” said Wright. But he added those orders could be reviewed to determine whether they overstep the standards outlined in the laws giving the departments that authority.

Friday’s landmark Supreme Court ruling came after months of litigation over Whitmer’s executive orders, which have shuttered businesses, required residents to wear masks and, for a period, demanded they avoid nonessential trips outside their homes to stem the spread of COVID-19.

The legal battles have involved a congressman, gyms, bowling alleys, an elderly barber who refused to close his shop in Owosso and the Michigan Legislature, which filed its own lawsuit nearly five months ago.

Friday’s ruling was spurred by a suit filed by a trio of Michigan medical centers against Whitmer’s order banning nonessential procedures. The ruling came 206 days after the governor first declared a state of emergency in Michigan because of the virus.

The ruling concluded the EPGA violated the Michigan Constitution because it delegated to the executive branch the legislative powers of state government and allowed the executive branch to exercise those powers indefinitely.

“Under the EMA, the Governor only possessed the authority or obligation to declare a state of emergency or state of disaster once and then had to terminate that declaration when the Legislature did not authorize an extension; the Governor possessed no authority to redeclare the same state of emergency or state of disaster and thereby avoid the Legislature’s limitation on her authority,” the ruling said.

The ruling said while the EPGA only allows the governor to declare a state of emergency when public safety is imperiled, “public-health emergencies such as the COVID-19 pandemic can be said to imperil public safety.”

The Supreme Court’s ruling on the question of the 1976 Emergency Management Act was unanimous. But the ruling on the 1945 Emergency Powers of the Governor Act saw a 4-3 split with Republican-nominated justices ruling the act unlawfully delegated legislative power to the governor.

Those ruling against the act were Justices Stephen Markman, Brian Zahra, Beth Clement and David Viviano.

Viviano noted the orders issued by the Department of Health and Human Services in support of Whitmer’s executive orders, appearing to leave the agency’s authority in place.

“In other words, nearly everything the governor has done under the EPGA, she has also purported to do, via the DHHS Director,” he wrote.

In his opinion, Markman wrote: “It is in no way to diminish the present pandemic for this Court to assert, as we now do, that with respect to the most fundamental propositions of our system of constitutional governance, with respect to the public institutions that have most sustained our freedoms over the past 183 years, there must now be some rudimentary return to normalcy.”

Chief Justice Bridget McCormack wrote the dissent, joined by Justices Richard Bernstein and Megan Cavanagh.

McCormack argued the federal and state supreme courts could only strike down a law as an unconstitutional delegation of power if there were no standards contained in the law to guide the decision-maker. The EPGA, McCormack said, contained the standards that the governor’s orders must be “reasonable” and “necessary” and issued in an attempt to protect life, property and bring an emergency under control.

McCormack said the high court was “needlessly” injecting itself into a “emotionally charged political dispute.”

In a Twitter post, U.S. Rep. Rashida Tlaib, D-Detroit, said the ruling demonstrates why Michigan voters should choose McCormack and fellow Democrat Elizabeth Welch for seats on the state’s top court next month.

“@GovWhitmer took bold action to keep us safe during this pandemic. The GOP appointees on the MI Sup Ct struck down her actions,” Tlaib wrote. “It’s clear they don’t care a bit about our lives or our well-being. That’s why we must elect Welch & re-elect Chief Justice McCormack to the court.”

GOP reacts to ruling
House Speaker Lee Chatfield, R-Levering, said on Twitter that the court ruled in agreement with the Legislature that the 1945 law is unconstitutional.

“The governor had no right to extend the state of emergency over the Legislature’s objection. Our Constitution matters, and this was a big win for our democratic process,” Chatfield said.

The Legislature stands ready to deliberate in a bipartisan way on pandemic response, he said.

Early on in the pandemic, the GOP-led Legislature submitted some suggestions to Whitmer that were eventually adopted within the executive orders and, since then, lawmakers have passed some laws that supported her executive orders, such as those pertaining to school reopening protocol.

Other bills the Legislature has approved regarding COVID-19, such as liability assurances for medical providers, have been vetoed by Whitmer.

Michigan Republican Party Chairwoman Laura Cox said the ruling marked “a great day for the people of Michigan.”

“Gov. Whitmer overexerted her powers,” Cox said. “The Legislature wants to be a willing partner in dealing with COVID-19, and Governor Whitmer should recognize their duly delegated role.”

U.S. Paul Mitchell, R-Dryden, filed a similar lawsuit in federal court challenging Whitmer’s emergency powers earlier this year. He said the justices’ ruling Friday was appropriate.

“From the outset, when the governor went beyond her initial orders — which I think were responsible to do to save our health care system from being overwhelmed — she kept going and that it did violate the state Constitution and federal Constitution,” Mitchell said.

He was unclear how the Supreme Court’s ruling would affect his lawsuit, which is pending.

“I’ve argued all along that if you explain to people the nature of the concern — how they keep themselves and those around you healthy — most people will do the right thing,” Mitchell said. “And you simply avoid those who choose to be ignorant and flout what’s basic science. It’s a highly infectious virus. You can do that without issuing orders like some military institution. We have constitutional rights that the governor seriously abridged with her orders.”

Case rooted in medical center suit
Three medical centers filed suit against Whitmer in federal court earlier this year in a challenge to her executive order that prohibited non-essential procedures at the height of the pandemic.

The suit argued the 1945 Emergency Powers of Governor Act lacked reference to epidemics or public health and that the act’s use of the word “emergency” implied a specific time limit.

Lower courts have previously interpreted the 1945 law as giving the governor the ability to declare an emergency and then determine when the emergency is over.

It’s one of two laws that allow a Michigan governor to declare an emergency. The 1976 Emergency Management Act includes a time limit that requires the legislative approval to extend an emergency past 28 days.

The suit from the medical centers closely aligned with litigation filed by the GOP-led Michigan Legislature, which has argued Whitmer’s unilateral powers violate the separation of powers in government.

The governor’s emergency powers should last only as long as it takes for the Legislature to assemble itself to address the emergency, argued lawyers for the GOP Legislature and the Mackinac Center for Public Policy, the group representing the medical centers.

Deputy Solicitor General Eric Restuccia, who represented the governor in the case, countered that Whitmer’s unilateral authority is necessary to ensure the governor can continue to act in the event that an emergency prevents the Legislature from holding session or makes it impractical to wait for lawmakers to go through the lawmaking process.

The state high court only considered the arguments of the medical centers after federal district Judge Paul Maloney requested they rule on the question of Whitmer’s emergency powers before he decided on the merits of their case.

Separately, a petition initiative drive led by the Unlock Michigan committee filed more than 500,000 signatures Friday in an attempt to repeal the 1945 law at issue in the case.

Whitmer first declared a state of emergency because of COVID-19 on March 10.