A state Court of Claims judge ruled Tuesday the emergency laws under which Gov. Gretchen Whitmer has issued dozens of executive orders in response to the coronavirus pandemic are likely constitutional.
Whitmer is facing a number of challenges over emergency mandates she’s issued without approval of the state House of Representatives or Senate.
Michigan United for Liberty, the group that has organized protests against the governor and her stay home orders at the Capitol, sued Whitmer in the Court of Claims on April 21, challenging the constitutionality of the Emergency Management Act of 1976 and the Emergency Powers of the Governor Act of 1945, the same laws at the center of the legislature’s lawsuit.
Whitmer used those laws to issue orders that have limited commerce and socializing while requiring face coverings be worn in public, enclosed places.
The Republican-led legislature also sued Whitmer in the state Court of Claims on May 6 after she extended the state of emergency without a vote of support.
Michigan United for Liberty, through attorney Philip Ellison’s Hemlock-based Outside Legal Counsel law firm, asked the Court of Claims to declare the emergency laws and the governor’s orders unconstitutional. The group also asked that Whitmer be barred from issuing further emergency orders.
“Under the Michigan Constitution, ‘no person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided by the Constitution’” the law firm said. “The Michigan Constitution does not provide the governor emergency powers generally or (as) a pandemic exception to the separation of powers.”
Court of Claims Judge Michael J. Kelly on Tuesday disagreed and denied Michigan United for Liberty’s request.
In evaluating the laws, the court “must remain cognizant that the situation sought to be controlled ... is an unpredictable, dangerous emergency or disaster situation,” Kelly wrote. "A disaster or emergency is almost assuredly a dynamic, unpredictable situation fraught with complexity.
“It is unreasonable to expect a demanding or precise set of legislative standards be incorporated into ... such a demanding scenario.”
While Kelly acknowledged the laws grant “broad” authority to the governor, he said it doesn’t include the “uncontrolled, arbitrary power” the U.S. Supreme Court has cautioned against.
Based on the determination, the Attorney General’s Office quickly filed a request for a ruling in the state’s favor in the lawsuit filed by the legislature.
Michigan Assistant Solicitor General Christopher Allen emailed a letter and copy of Kelly’s opinion to Court of Claims Judge Cynthia Diane Stephens, who is presiding over the legislature’s lawsuit against Whitmer based on similar allegations of constitutional violations.
The court “determined that (Michigan United for Liberty) is unlikely to succeed on the merits of its claims because neither the Emergency Management Act nor the Emergency Powers of the Governor Act represent an impermissible delegation of legislative authority to the Governor,” the Allen’s letter said. “As noted by (the Court of Claims), ‘Historically, these types of challenges ‘have been uniformly unsuccessful.’"
Stephens on Friday heard arguments from Allen and attorney Michael R. Williams, who represents the Legislature.
Stephens has not yet ruled.
Messages seeking comment were left with Michigan United for Liberty and its attorney.
Assistant Solicitor General Allen’s letter and Kelly’s opinion in the Michigan United for Liberty lawsuit:
COVID-19 PREVENTION TIPS
In addition to washing hands regularly and not touching your face, officials recommend practicing social distancing, assuming anyone may be carrying the virus.
Health officials say you should be staying at least 6 feet away from others and working from home, if possible.
Use disinfecting wipes or disinfecting spray cleaners on frequently-touched surfaces in your home (door handles, faucets, countertops) and carry hand sanitizer with you when you go into places like stores.
Michigan Gov. Gretchen Whitmer has also issued an executive order requiring people to wear face coverings over their mouth and nose while inside enclosed, public spaces.
Read all of MLive’s coverage on the coronavirus at mlive.com/coronavirus.
Additional information is available at Michigan.gov/Coronavirus and CDC.gov/Coronavirus.
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Coronavirus preparedness, response plans required for Michigan businesses set to reopen
Protester explains doll, noose demonstration at Capitol, wants to gift props to Trump
Michigan’s mask mandate highlights political fault lines in coronavirus crisis
Whitmer’s emergency powers challenged
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