Michigan Appeals Court Says Gretchen Whitmer’s Emergency Actions Were Justified

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The Michigan Court of Appeals upheld a lower court ruling Friday that said Democratic Michigan Gov. Gretchen Whitmer did not exceed her emergency powers under the Emergency Powers of Governor Act (EPGA) during the pandemic.

“We hold that the governor’s declaration of a state of emergency, her extension of the state of emergency, and her issuance of related executive orders fell within the scope of the governor’s authority under the EPGA,” the court said in a 2-1 opinion.

“We further hold that the EPGA is constitutionally sound,” Judge Jane Markey write, for the majority on the three-judge panel.

Michigan’s Republican-led state Legislature sued Whitmer for a series of emergency declarations beginning in March that declared a state of emergency. The declaration allows the governor to issue orders without legislative input, according to The Detroit News.

The Legislature argued Whitmer “seized” power to make laws without legislative input and would set a precedent allowing governors to act without restraint, per the report.

They also argued the governor does not have the power to declare an indefinite statewide emergency, arguing the Emergency Management Act (EMA) of 1976 requires Whitmer to get approval from the legislature to extend the state of emergency after 28 days, according to the Detroit Free Press.

During the appeals process, Whitmer relied on the 1945 EPGA to support her orders.

The appeals court declined to say whether Whitmer exceeded her powers under the EMA, saying the question is moot since she was empowered to take the same actions under the EPGA.

The Legislature also argued that if the EPGA does give Whitmer the authority to declare a state of emergency indefinitely, then it amounts to an unconstitutional ceding of legislative power to the executive branch, according to the Detroit Free Press.

The decision said the EPGA “does not provide any active role for the Legislature during a public emergency, let alone the power to directly act as a check against a governor’s exercise of authority under the EPGA,” and shot down claims the EPGA is unconstitutional, according to the Detroit Free Press.

“As for the separation of powers argument, a law is presumed to be constitutional, and courts are obligated to interpret a statute as constitutional unless its unconstitutionality is readily apparent,” the opinion said.

Republican Speaker of the Michigan House Lee Chatfield took to Twitter to express his disappointment with the ruling, saying the court “got it wrong.”

In another tweet Lee called Whitmer’s actions “unconstitutional.”

“The Court of Appeals ruled today that as long as it’s the opinion of a sitting governor that there’s an emergency, they can take over complete, unilateral control of the state for as long as he or she decides. No checks on power. No separation of power. This is unconstitutional.”

Judge Jonathan Turkel dissented, saying Whitmer’s order restricted the liberties of Michigan citizens and violated separation of powers.

“Those orders, and the associated criminal penalties, were imposed solely by executive order of the governor, bypassing the normal legislative process.”