Federal judge asks Michigan Supreme Court to decide emergency power questions

By Scott McClallen | The Center Square June 20, 2020

(The Center Square) – A federal judge asked the Michigan Supreme Court to settle questions regarding whether Gov. Gretchen Whitmer has the authority to issue executive orders under two state laws.

U.S. District Judge Paul Maloney certified two questions to the Michigan Supreme Court.

  • Whether Whitmer has the authority to issue executive orders under the Emergency Powers of the Governor Act (EPGA) or the Emergency Management Act (EMA)
  • Whether the EPGA or the EMA violates the separation of powers or the non-delegation clauses of the Michigan Constitution

The order stems from a lawsuit from medical providers against Whitmer’s order delaying nonessential procedures.

Although Whitmer lifted the executive order, Maloney wrote the medical lawsuit wasn’t moot because facilities must still follow 15 safety precautions enacted by executive orders.

Others have challenged Whitmer’s authority as well. 

The GOP-controlled legislature sued Whitmer on May 6, claiming she exceeded her powers under those laws after she unilaterally extended her emergency powers April 30 after lawmakers didn’t.

Court of Claims Judge Cynthia Stephens in May ruled that Whitmer acted legally. However, the legislature appealed straight to the Supreme Court, which last week pushed the question down to the Court of Appeals, where it’s scheduled for an August hearing.

The appeal could expedite the ruling if the top court takes the case.

Whitmer has rescinded many of her 130 executive orders issued this year, most in response to the COVID-19 pandemic. Other edicts remain that delay eviction and allow government entities to meet remotely.

Republicans have argued the peak of the COVID-19 pandemic has concluded, and that any other response should go through the legislative process.

Maloney wrote the questions were unsettled, and submitting the questions to the state Supreme Court “acknowledges that court’s status as the final arbiter on matters of state law.”

“[T]he guidance sought today prevents this Court from overstepping its role, eliminates the risk that this Court interprets the relevant state law differently than the Michigan Supreme Court might, and eliminates the risk of conflicting federal and state decisions,” Maloney wrote.

Whitmer has called any attempts to strip her power “irresponsible, dangerous and foolish.”

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