Michigan Governor’s Covid Orders Tossed by State’s Top Court

(Bloomberg Law) -- Dozens of Michigan executive orders issued by Gov. Gretchen Whitmer to fight the coronavirus pandemic are unconstitutional, the state's high court ruled Friday in a split decision.

Four of the seven justices ruled that the 1945 statute giving Whitmer (D) unilateral power to issue orders addressing the pandemic violated the state constitution because the law delegated too much power to the governor's office.

The Michigan Supreme Court ruling invalidates orders ranging from business restrictions to mask mandates, and will require Whitmer to compromise with Republicans on any health emergency orders that extend 28 days.

Whitmer's powers may have been short-lived even without the ruling. Her pandemic orders have been a rancorous subject in a politically divided state. Republicans hold the majority in both state houses, and conservatives say the Democratic governor overextended her authority. Earlier Friday, a group of Michigan anti-Covid-19-shutdown activists submitted enough petitions to allow the Legislature to repeal the governor's emergency powers. It's not clear whether that effort will continue after Friday's ruling.

While legal challenges have been launched across the country in response to gubernatorial actions to the pandemic, it appears that Whitmer is the first governor to have her emergency executive authority eviscerated by a state supreme court.

Four justices held that the state statute Whitmer relied on was an unconstitutional delegation of legislative authority because there weren't sufficient limits on her powers, such as duration of an emergency, that “constrained the Governor's actions in any meaningful manner.”

Whitmer didn't immediately respond to a request for comment.

The case is In re Certified Questions from the U.S. Dist. Court, Western Dist. of Michigan, S. Div., Mich., Mich., No. 161492, Opinion 10/2/20.

To contact the reporter on this story: Alex Ebert in Columbus, Ohio at aebert@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com; Alexis Kramer at akramer@bloomberglaw.com

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