MI Supreme Court Rules Whitmer’s Executive Orders Unconstitutional

Cover image is property of the Associated Press.

October 2, 2020

The Michigan Supreme Court on Friday, October 2, 2020, ruled that governor Whitmer’s various Corona virus-related executive orders were “unlawful delegations of legislative power to the executive branch in violation of the Michigan Constitution.”

Governor Whitmer responded by blaming Republican court justices.

“Today’s Supreme Court ruling, handed down by a narrow majority of Republican justices, is deeply disappointing and I vehemently disagree with the court’s interpretation of the Michigan Constitution. Right now, every state and the federal government have some form of declared emergency. With this decision, Michigan will become the soul outlier in a time when the Upper Peninsula is experiencing rates of COVID infection not seen in our state since April.”

Gretchen Whitmer

As is typical, this language is somewhat deceptive. Michigan remains one of the most locked-down states in the US, while states like Florida are opening up. As of the time of this writing, Michigan restaurants are still limited to the number of patrons allowed inside. In addition, patrons must wear masks from the door to their tables.

This comes on the heels of a few days ago, when Gretchen created a new executive order which specified that K-12 children in public schools must wear a mask at school for the entire school day. This supersedes an earlier requirement that would let schools decide mask policy on an individual basis.

To contrast that, five days ago on Sep 28, Florida governor Ron DeSantis released a new executive order stating that Florida would transition to Phase 3 of it’s reopening plans, which would allow restaurants and bars – who have arguably been hit the hardest during the COVID-19 pandemic – to open at full capacity.

The same day as the Michigan Supreme Court ruling against’s Governor Whitmer, Governor Henry McMaster of South Carolina issued an executive order allowing all establishments to operate at 100% of their capacity, effective immediately. The requirement to space tables six feed apart and limiting the number of diners per table to eight are now considered “strongly encourage” but not required. All policies overturns by McMaster on Friday have been in place since May.

The Michigan Supreme Court ruling specifically stated that Whitmer’s executive orders under the condition of a “sate of emergency” were limited to 28 days. In addition, the court commented on the legality of the Emergency Powers of the Governor Act of 1945, the act that Gretchen has been using as a basis to enforce her executive orders.

“The Governor does not possess the authority to exercise emergency powers under the Emergency Powers of the Governor Act of 1945, MCL 10.31 et seq., because that act is an unlawful delegation of legislative power to the executive branch in violation of the Michigan Constitution. Accordingly, the executive orders issued by the Governor in response to the COVID-19 pandemic now lack any basis under Michigan law.”

Michigan Supreme Court Ruling, Oct 2, 2020

Whitmer was quick to point out that the ruling does not take effect for 21 days, and stated that enforcement of the same protocols that have been in place to “keep residents safe” will be handled by “alternative sources of authority.”

Michigan residents have yet to see what those “alternative sources of authority” are. Governor Whitmer was not asked to explain what she meant by making that statement.

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