Michigan Supreme Court rules against emergency powers similar to Pritzker’s

The Michigan Supreme Court concluded that Gov. Gretchen Whitmer could not legally extend her emergency executive orders without the approval of the legislature, while declaring another source of her authority unconstitutional altogether.

The Michigan Supreme Court on Oct. 2 decided against Gov. Gretchen Whitmer’s continued exercise of emergency powers in response to the COVID-19 pandemic.

In their answers to certified questions from the United States District Court for the Western District of Michigan, the court unanimously determined that under the Emergency Management Act of 1976, Whitmer could not declare a new disaster in order extend her emergency executive powers past the legally mandated 28-day limit.

A majority of the court determined the 1945 Emergency Powers of the Governor Act was an unconstitutional delegation of legislative power to the executive, as well, and Whitmer could no longer rely on its authority for her COVID-19 executive orders.

Whitmer has cited these laws as her authority to shut down bars and restaurants, mandate masks indoors, and order large retailers to block off whole sections of their stores deemed unnecessary, such as home and gardening.

Her emergency powers were renewed once by the Michigan legislature, but state lawmakers would not approve additional extensions, so Whitmer acted without their approval.

Gov. J.B. Pritzker has used a similar tactic in Illinois, although without outright opposition from the Democratic-controlled General Assembly. The source of Pritzker’s emergency powers, the Illinois Emergency Management Agency Act, imposes a similar although not identical 30-day limit to any emergency declaration, and his continued extensions have not gone unchallenged. The Illinois Supreme Court has not yet heard the merits of the issue, and those cases are currently working their way through the litigation process.

While Illinoisans wait to see what happens, Michigan has an answer to the limits of executive powers in their state. But regardless of the ultimate outcome in Illinois, the General Assembly has an essential role to play in the COVID-19 response, and should not be content to cede its responsibility to the governor’s rule by executive order.