“Unconstitutional”: Michigan Supreme Court Denies Gov. Whitmer Request For Extension Of Pandemic Executive Powers

Fresh from her “ordeal” of almost being kidnapped by a couple of white supremacists  leftist, BLM-supporting militia nuts, overnight there was more bad news for Michigan Gov. Gretchen Whitmer when on Monday a conservative majority in the Michigan Supreme Court denied her request to extend the emergency powers which she invoked to curb the spread of the coronavirus, declaring it unconstitutional.

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The justices reversed a lower court’s opinion that supported the governor’s use of executive powers amid the pandemic when they voted 6-1 against halting the precedential effect of its Oct. 2 opinion until Oct. 30. They reaffirmed their initial 4-3 ruling that declared unconstitutional her use of the 1945 emergency powers law.

Michigan Supreme Court justices are elected on the nonpartisan portion of the Michigan ballot, but they are nominated at state political party conventions. The four Republican-nominated justices — Stephen Markman, Brian Zahra, David Viviano and Elizabeth Clement — all ruled that the Emergency Powers of Governor Act that the governor relied on in issuing her orders is unconstitutional. The three Democratic-nominated justices — McCormack, Bernstein, and Cavanagh — all said that both the law and Whitmer’s orders under the 1945 law should be ruled valid.

In striking down her attempt to continue usurping power, the court wrote that executive orders issued under the law “are of no continuing legal effect. This order is effective upon entry.”

But new emergency orders that the Whitmer administration has issued through the state health department director — which replicate mask requirements, restrictions on gathering sizes and restaurant capacity, among other features — are not affected by the court’s ruling.

Monday’s Supreme Court ruling is in response to a lawsuit brought by the Michigan Legislature. The Oct. 2 ruling, which was a 4-3 decision striking down the Emergency Powers of Governor Act of 1945, was in response to questions sent to the court by a federal judge handling a lawsuit brought by medical service providers in western Michigan.

Whitmer had asked the justices to give her administration, lawmakers and local health departments 28 days to transition in the wake of the major decision. Last week, her administration quickly reinstituted mask requirements, gathering limits and other restrictions with orders issued by the state health department under a different law.

Separately, Fox News reported that legislators and Whitmer are negotiating legislation related to other orders negated by the decision, including an extension of unemployment benefits to 26 weeks from 20 weeks.

The ruling caused some confusion because it reached the Supreme Court in an unconventional way. A federal judge overseeing a lawsuit that makes state and federal claims about Whitmer’s powers asked for an opinion on the constitutionality of two laws related to gubernatorial emergency powers. The Supreme Court ruled in a similar case brought by the GOP-controlled House and Senate and said in an order that the decision is effective immediately.