By Patrick Colbeck
In a 7-0 Decision issued Friday, the Michigan Supreme Court affirmed the provisions of the 1976 Emergency Powers Act and nullified COVID-related Executive Orders issued by Michigan Governor Gretchen Whitmer. In a 4-3 Decision, the Michigan Supreme Court declared the related 1945 Emergency Powers of Governor Act (EPGA) cited as the basis for her Executive Orders unconstitutional.
The net impact of the decision is to nullify ALL Executive Orders issued by Michigan Governor Whitmer which are reliant upon a state of emergency beyond April 30, 2020. Examples of nullified orders include the following:
- Co-location of COVID-19 patients in nursing homes
- Region-based re-opening of state
- Mandatory wearing of face masks
- Restrictions on sizes of gatherings indoor and outdoor
- Restrictions upon theaters, bars and restaurants
- Differentiating between essential and non-essential workers
- Restrictions upon delivery of education
- Restrictions upon participation in sports
Independent legal analysis has been provided by Attorney David Kallman of the Great Lakes Justice Center in the following video produced by Stand Up Michigan:
In the wake of the Michigan Supreme Court ruling, Governor Whitmer issued a statement that defied key tenets of the ruling, namely:
- The decision to nullify her Executive Orders which rely upon a state of emergency after April 30 was a unanimous decision (7-0) NOT a partisan decision as she states in her release.
- The Governor claims that the opinion does not go into effect for 21 days (conveniently close to November 3 election day). However, the actual text of the Supreme Court opinion states the following, “Accordingly, the executive orders issued by the Governor in response to the COVID-19 pandemic now lack any basis under Michigan law.”
Statement by Honorable Aaron Gauthier, Judge for 53rd Circuit Court:
“Don’t be taken in by our Governor’s “21 day” claim. Yes, per MI Court rule 7.311 she has 21 days to file a motion for reconsideration. However, 7.311G expressly states “The filing of a motion for reconsideration does not stay the effect of the order addressed in the motion.”
Additionally MI Court rule 7.315(d) states “Unless otherwise stated, an order or judgment is effective the date it is entered.”
The date the opinion was entered was October 2, 2020.
Major state and national media outlets have displayed significant bias by focusing upon the claims made in Governor Whitmer’s statement in their reports not the actual text of the Supreme Court decision. These reports appear to be designed to give the Governor additional time to implement her executive orders via existing statutory authority given to state administrative agencies. These agencies have limited authority to issue rules thereby giving the appearance that her orders remain in effect. Any rules promulgated in this manner, however, would be subject to legislative oversight and possible suspension via legislative authority vested in Article IV Section 37 of the Michigan Constitution.
The following media stories promote Governor Whitmer’s talking points in deference to the substance of the Michigan Supreme Court ruling:
WXYZ ABC News Detroit
WDIV NBC News Detroit
Additional stories featuring bias in favor of Governor’s statement over the substance of the ruling:
https://www.cnn.com/2020/10/02/politics/michigan-supreme-court-whitmer-covid-emergency/index.html
Summary
Michigan now returns to constitutional governance in accordance with the rule of law.
The cell built by unlawful Executive Orders which had locked down the citizens of Michigan is now open.
The question is whether or not the citizens will choose to leave their cell or cower in submission to additional unlawful assertions by Governor Whitmer and her supporters.