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The legal challenges to Governor Whitmer’s executive orders – Part I

 On March 10, Gov. Gretchen Whitmer issued Executive Order Number 2020-4, which declared a State of Emergency in Michigan under the Emergency Management Act (EMA), the Emergency Powers of Governor Act (EPGA), and Michigan’s Constitution.

 As we all know, this declaration was made because of the COVID-19 pandemic.

 Since the initial Executive Order, there have been more than 170 additional orders impacting many aspects of daily life in Michigan. The State of Emergency and certain limitations on activities remain in effect.

 There have been a number of federal and state legal challenges to the governor’s authority to issue these Executive Orders.

 I won’t detail them all here but suffice it to say there are two cases presently pending in the Michigan Supreme Court which could change everything.

 The first was initiated in the Michigan Court of Claims by the Michigan legislature against the governor. The complaint alleged that the governor did not have statutory authority to issue Executive Orders after April 30, 2020; the EMA and EPGA are unconstitutional; and an epidemic does not constitute an “emergency” under the EPGA.

 The legal argument behind the first claim is that under the EMA, there is a 28-day time limit for an emergency declaration unless the legislature votes to extend it. Since that did not occur, no other orders can enter and the State of Emergency is over.

 As to the statutes being unconstitutional, the claims are that they give inappropriate unrestricted power to the governor and also give her the power to make laws as opposed to the legislature, thus violating the constitutional Separation of Powers Doctrine. This Doctrine provides that our three branches of government

are to remain separate with limited exceptions.

 It is also claimed that the EPGA has no time limit for emergencies, which could result in an endless State of Emergency, and the word “epidemic” is not a listed emergency in the statute thus making the original declaration invalid.

 The governor denied all of the plaintiffs’ claims.

 The Court of Claims and the Michigan Court of Appeals agreed with the plaintiffs on the first claim but upheld the governor on the rest and confirmed the validity of the EPGA.

 Next week - Part II - The Federal Case.

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