Michigan Supreme Court Strikes Down Gov. Gretchen Whitmer's COVID-19 Executive Orders

Whitmer helped spark a national debate over the limits of executive power.

The Michigan Supreme Court ruled Friday that a series of executive orders put in place by Gov. Gretchen Whitmer to combat COVID-19 were unconstitutional and are now invalid under Michigan law.

The Democratic governor's directives were an "unlawful delegation of legislative power to the executive branch in violation of the Michigan Constitution," wrote Justice Stephen J. Markman.

Over the course of the pandemic, Whitmer sparked a great deal of debate over how much power a state's executive branch should have in addressing a public health crisis. The governor's April stay-at-home order prohibited "all public and private gatherings of any number of people occurring among persons not part of a single household." It banned the in-store sale of paint, outdoor goods, and other allegedly nonessential items at big-box retail stores, so those establishments were forced to block off certain aisles to customers. In most cases, it disallowed travel between Michigan residences, including to vacation homes in the northern area of the state. It shuttered lawn care services, despite research suggesting that the virus is much harder to transmit outdoors. It made it illegal to use motorboats, though residents could use boats without motors.

Lottery sales, however, were deemed essential, likely because the proceeds help fund the state's public schools.

Whitmer rolled back those restrictions at the end of April, not long after four Michigan sheriffs issued a public letter saying they wouldn't be enforcing several of her regulations. But the governor continued to issue orders as she saw fit. At one point she issued an executive order requiring stricter enforcement of her executive orders, which includes a provision that allows the government to weaponize licensing power against businesses.

Republicans sued in May. As I wrote then:

At the core of the conflict are differing interpretations of Michigan's two laws pertaining to emergency executive authority: the Emergency Powers of Governor Act [EPGA] of 1945 and the Emergency Management Act [EMA] of 1976. The former does not require that a sitting governor ask for permission from the legislature to extend a state of emergency, but the latter mandates that he or she do so after 28 days, a mark that Whitmer has hit. That deadline is complicated by a clause in the 1976 legislation, which states that the law "shall not be construed to…limit, modify or abridge the authority of the governor to proclaim a state of emergency" as laid out under the 1945 act.

"This lawsuit is just another partisan game that won't distract the governor," Tiffany Brown, Whitmer's press secretary, declared at the time.

But the state's highest court disagreed. It said the governor overstepped the bounds of her authority when she declared a state of emergency after that first 28-day mark. But even if that weren't the case, it wouldn't have mattered, because court also ruled the 1945 emergency powers statute unconstitutional.

"We conclude that the Governor lacked the authority to declare a 'state of emergency' or a 'state of disaster' under the EMA after April 30, 2020, on the basis of the COVID-19 pandemic," the court said. "Furthermore, we conclude that the EPGA is in violation of the Constitution of our state because it purports to delegate to the executive branch the legislative powers of state government—including its plenary police powers—and to allow the exercise of such powers indefinitely. As a consequence, the EPGA cannot continue to provide a basis for the Governor to exercise emergency powers."