Michigan Supreme Court Limits Governor’s Emergency Powers

By Jerold Lax

In a 4-3 decision issued on October 2, 2020, the Michigan Supreme Court limited Governor Whitmer’s authority to impose emergency regulations to deal with the COVID‑19 pandemic.

The Governor had declared states of emergency under two statutes, the Emergency Powers of the Governor Act of 1945 (the EPGA) and the Emergency Management Act of 1976 (the EMA). The EMA authorized the Governor to declare a state of emergency for a limited time, but the state of emergency could be extended by action of the Legislature; the Legislature had extended the Governor’s initial declaration through April 30, but the Governor had redeclared an emergency subsequent to that date. 

The EPGA doesn’t impose any time limit on a gubernatorial declaration of emergency and authorizes the Governor to take steps “reasonable” and “necessary” to deal with the emergency. All of the Supreme Court’s seven justices agreed that the Governor lacked authority to extend a declaration of emergency under the EMA beyond the date determined by the Legislature, but only three of the justices concluded that the Governor could lawfully exercise the emergency powers she attempted to exercise under the EPGA. All four of the remaining justices concluded that in allowing the Governor to take “reasonable” and “necessary” emergency measures under the EPGA, the Legislature had unlawfully delegated its authority to the Governor without adequate standards to limit gubernatorial action, and therefore the EPGA was ruled unconstitutional. Justice Viviano also concluded that the EPGA only allowed the Governor to deal with matters of public safety and the COVID situation was a matter not of safety, but of health, which he regarded as a separate category of governmental concern. As a result, the Court’s decision was that neither of the statutes upon which the Governor had relied supported her actions.

It is important to note that whether one agrees or disagrees with the result reached by the Court, or with the specific reasoning with any of the justices’ separate opinions, the Court’s October 2nd decision doesn’t necessarily limit the ability of state agencies other than the Governor (for example, the Department of Health and Human Services) to issue regulations dealing with the COVID crisis, or the ability of local agencies to take similar steps, though any such regulations might be subject to legal challenge based on the extent of the authority of the issuing agencies. The Legislature could clarify the authority it wishes to repose in the Governor in a manner which might ultimately satisfy a reviewing court. 

Whether or not governmental agencies issue such regulations, businesses and individuals will no doubt continue considering and debating what steps, if any, must or should be taken the minimize the effects of the ongoing crisis.

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