Gov. Gretchen Whitmer’s declaration of emergency powers for the past six months became the flashpoint of a lively back-and-forth between Michigan’s Supreme Court justices and attorneys on both sides of the issue.
On Wednesday, the court heard oral arguments regarding the merits of the governor invoking both the Emergency Powers of Governor Act (EPGA) of 1945 and Michigan Emergency Powers Act (MEP) of 1976 in her attempts to deal with the coronavirus pandemic.
The hearings stem from three cases filed by the Miller Johnson law firm and the Mackinac Center Legal Foundation on behalf of three medical practices, the Associated Builders and Contractors of Michigan, and salon owner Sarah Huff. All three cases allege the plaintiffs’ patients, employees and businesses were harmed by Gov. Gretchen Whitmer’s “Stay Home, Stay Safe” executive orders.
Wednesday’s arguments centered on whether Whitmer could extend indefinitely the unilateral executive powers she assumed March 10 under MEPGA and MEP beyond the initial 28 days. The justices, for their part, seemed eager to grill the attorneys on their respective interpretations of the 1945 and 1976 statutes.
In short, both statutes allow the governor to assume emergency powers, but only the 1976 MEP imposes the 28-day time limit.
“The 1945 Act does not have an explicit time limit in it for the exercise of emergency powers,” explained Patrick Wright, Mackinac Center Legal Foundation vice president for Legal Affairs, in an email to The Center Square. “If the Court does not read a time limit into it, then Michigan’s constitution is violated.”
In response to a question posed by Justice Stephen J. Markman, Miller Johnson attorney Amy Murphy responded: “Reading a time limit into the statute would not in any way abridge the governor’s power to proclaim an emergency under the EPGA. It would simply recognize that power does have a limit, and the procedural safeguard of a timeline is essential to due process.”
The governor and attorneys from the Michigan Attorney General’s office argue Whitmer’s executive powers are already checked by other means, including wording within the statutes that imply time restraints. Further, noted Eric Restuccia, the AG’s chief legal counsel, the specific executive orders issued by Whitmer were already rescinded in May, rendering moot the challenges made by the plaintiffs’ attorneys.
Michael R. Williams, an attorney with Bush Seyferth PLLC in Kalamazoo, argued the governor’s exercise of emergency powers are not consistent with any legal reading.
“If the governor’s interpretation of the EPGA is the correct one, in the legislature’s view the … governor would have a strong statutory basis to do whatever she wished to do. Her view would empower her to do whatever she liked throughout the state of Michigan, and those carefully calibrated levers of government would instead be ignored,” Williams said.
Attorney Samuel Bagenstos argued the best way for the Supreme Court to protect the legislature’s powers is “to enforce the statutes the legislature adopted according to the text the legislature adopted.”
Bagenstos added there is no constitutional crisis with either the statutes or the governor’s application of those statutes.
“The arguments went quite well,” Wright noted. “The Justices were clearly concerned about a ruling that would allow the Governor to have unlimited powers for years at a time.”
