Striking Down Gov. Whitmer's Emergency Powers Was Important First Step

It’s been one year since the Michigan Supreme Court struck down Gov. Gretchen Whitmer’s misuse of executive power during the COVID-19 pandemic.

In response to the spread of the new coronavirus, many governors used emergency powers to unilaterally put in place unprecedented mandates, such as prolonged school closures, business lockdowns and shelter-in-place orders. Outside of wartime, these types of measures had never been used this extensively. It came as no surprise that they were controversial.

According to Ballotpedia, a nonpartisan source of statistics about American politics, more than 1,000 lawsuits were filed nationwide over states’ responses to the pandemic. Governors prevailed in most of these legal challenges, save a few exceptions. One of those was the Mackinac Center Legal Foundation’s case against Gov. Whitmer’s lockdown.

Two medical providers and one patient teamed up to sue the governor, because one of her executive orders rationed medical care, forcing health care providers to postpone what government officials deemed “nonessential” treatments. No exceptions were allowed.

The two providers soon realized the costs of this blanket ban on medical services. Denied treatment, some of their patients suffered significantly, their conditions worsening. Many were forced to stay at home and face increased pain and discomfort. Others battled depression; a few attempted suicide.

This ban on certain medical services had no impact on the governor's initial attempt to “flatten the curve.” Perhaps it slightly reduced the spread of the virus that causes COVID-19. But balanced against the harm it caused those who had to miss treatments and needlessly suffer, it is not clear in the least that the governor’s order improved public health.

In addition to these problems, Gov. Whitmer’s use of executive power was unconstitutional and posed a threat to the health of Michigan’s political order. She resurrected an obscure 75-year-old law that had not been used since 1970 to grant herself unilateral lawmaking authority, a power reserved exclusively for the Legislature by the Michigan Constitution. Of course, in times of emergencies, it may be necessary for governors to issue emergency executive orders, but they should only be able to do so temporarily. Gov. Whitmer attempted to maintain these powers indefinitely.

This violated a fundamental principle of American governance: separation of powers. Even during times of emergencies, governors may not grant themselves unlimited powers. The Michigan Supreme Court highlighted in its ruling how unprecedented Gov. Whitmer’s actions were: “No individual in the history of this state has ever been vested with as much concentrated and standardless power to regulate the lives of our people, free of the inconvenience of having to act in accord with other accountable branches of government and free of any need to subject her decisions to the ordinary interplay of our system of separated powers and checks and balances.”

The court correctly ruled that the governor acted illegally by using the unconstitutional 1945 law to grant herself unilateral and indefinite power. That law has since been repealed by a citizen’s initiative that was ratified by the Michigan Legislature.

While they split on that decision, 4-3, the justices did rule unanimously that the governor’s attempt to use a different law from 1978 was also illegal. This law — the Emergency Management Act — also grants governors unilateral powers but only for 28 days. After that, they must get legislative approval to continue using those powers. Gov. Whitmer tried to carry on unilaterally without such consent.

The EMA is constitutional and still on the books. It provides clear standards for when a governor may use emergency powers and preserves the separation of powers principle by providing the Legislature — our elected representatives in Lansing — a voice in how long these powers may persist.

The EMA also specifically names pandemics as one of its primary purposes. Despite this, Gov. Whitmer has acted as if the EMA didn’t exist after the court ruled against her. She chose instead to use power granted to the director of the state health department, an unelected bureaucrat, in a different state law to continue her unilateral policies on mask-wearing, gathering limits and business shutdowns. Like the 1945 law, this statute confers a significant amount of power that could last indefinitely to the executive branch without allowing any oversight or input from voters’ elected representatives.

But this may soon change. Unlock Michigan, the driving force behind the repeal of the 1945 law, is gathering signatures to put another citizen-led initiative before the Legislature. The Unlock 2 petition would place the same 28-day limit on state- or locally issued epidemic orders from public health departments that exists in the EMA. Those orders could only continue if the Legislature or a locally elected legislative body approves.

This would be a significant improvement and ensure that these statutes adhere to the Michigan Constitution’s separation of powers requirement. But more reforms to emergency powers are still needed. Other state departments have powers to establish emergency rules and orders without any legislative oversight. A thorough review of all the emergency powers in state law will be required to fully protect Michiganders’ civil rights against misuse of government authority.

In response to COVID-19, government officials have demonstrated a new willingness to use unprecedented power to issue unilateral orders and mandates. The Mackinac Center’s victory at the state’s high court against Gov. Whitmer’s abuse of power was just a first step in the reform effort needed to protect the public from future unilateral emergency edicts.

Michael Van Beek is the director of research at the Mackinac Center for Public Policy, a research and educational institute located in Midland, Mich.