Of Interest

Michigan Attorney General Says "Burn Your Masks" And Forget Covid Emergency Orders After State Supreme Court Decision

A Comment Regarding Governor Whitmer’s Response to Her Unconstitutional Exercise of Power

Wright Law Firm Update

Last Friday afternoon the Michigan Supreme Court ruled that many of Governor Gretchen Whitmer’s emergency orders regarding Covid-19 safety are not legal. We posted about it last week. The decision is significant, and not just for Michigan. When it came to the Covid-19 pandemic too many governors and municipal bodies throughout the Country, including Arizona, adopted a similar strategy. Enact executive orders that mandated closing businesses and otherwise infringed on personal liberties. However, temporary orders to flatten the curve soon became the "new normal" bait and switch.

If you read the Michigan decision you will observe that the Michigan Supreme Court ruled two different ways. One part of the decision rendered a unanimous, 7-0, opinion and the other was a narrow, 4-3, opinion. 

“Specifically, the Court ruled on a 7-0 opinion, that Governor Whitmer had no authority to issue these executive orders, according to the emergency management act of 1976. That was the first part and that was the part that was unanimous. That she has zero authority to do that.

The other part of the ruling was a 4-3 decision to the second question about whether the Emergency Powers of Governor act itself violated the state constitution, namely, separation of powers clause of the Michigan Constitution.

The stunning ruling said she illegally drew authority from a 1945 law that doesn’t apply. One aspect the court pointed out was the redeclaring states of emergency in what has been a string of orders from Whitmer. The state of emergency is meant to last 28 days.

Immediately following the ruling Michigan attorney Katherine Henry announced that when the state Supreme Court ruled Gov. Gretchen Whitmer’s executive orders were unconstitutional, all of her orders issued since the end of April are over. Done.

“The Governor does not possess the authority to exercise emergency powers under the Emergency Powers of the Governor Act of 1945 because that act is an unlawful delegation of legislative power to the executive branch in violation of the Michigan Constitution. Accordingly, the executive orders issued by the Governor in response to the COVID-19 pandemic now lack any basis under Michigan law.”

This is in contrast to Governor Whitmer’s own response, which was to issue a half-true and misleading press release that said the ruling was 4-3. In addition, rather than accept the court’s unanimous decision that her actions were unconstitutional, she said the Supreme Court ruling was “deeply disappointing” and that she vehemently disagreed. Then, in an attempt to further maintain the illusion of authority the Governor argued that her “[unconstitutional] orders will remain in place for 21 more days until the Supreme Court ruling takes effect. After that, she said many of the orders will remain in place under “alternative sources of authority that were not at issue in today’s ruling.”

Governor Whitmer’s response to the ruling are in stark contrast to Michigan Attorney General Herny’s response. Herny said that’s not true. She said it means [Michigan] could ignore all mask mandates, social distancing, and more, effective on Friday at 4:35 p.m.

“That means burn your masks right now if you didn’t already. Open your gym, and movie theatre and open whatever business you have. Go on and frequent whatever business you would like to go to, if you have a church that’s limited your services because of how you’re reading the EOs, forget that. All of those executive orders, based on COVID-19 circumstances, from 2020, they’re out, they’re gone, they’re done,” Henry said.

Additionally, Henry said there’s nothing in place regarding any of the executive orders from Whitmer and that the governor’s office has not yet filed for a rehearing. She also said the governor can’t appeal the ruling to a higher court because the only court higher than the state Supreme Court is the U.S. Supreme Court, which does not have jurisdiction over state law or state constitution.

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