Opinion: The governor no longer has unilateral control. Now what?
Oct. 3, 2020
The Michigan Supreme Court on Friday rejected Gov. Gretchen Whitmer’s unilateral control over the state’s response to COVID-19. The governor overstepped and acted illegally, the court said, and the state law she tried to use to maintain emergency powers indefinitely is unconstitutional. With this ruling, the court reinforced important safeguards to protect Michigan residents from abuse of executive authority, attempting to restore a balance of power in government.
All seven justices agreed that Whitmer acted illegally by continuing a state of emergency without legislative approval, as is required by a 1976 law meant to guide the state’s response to epidemics. The Legislature had given approval for an extended state of emergency in the early days of the pandemic, but only until April 30. The governor ignored this statutory requirement, refused to work with the Legislature and plowed ahead anyway, continuing to unilaterally declare emergencies under the 1976 law.
Recognizing she was on shaky legal ground by ignoring the 1976 law, Whitmer also attempted to use a different law from 1945, meant to address urban riots, to maintain sole control of state policies related to COVID-19. In a separate, 4-3 decision, the court held that this Michigan law is unconstitutional. The riot law, it said, provides the governor with sweeping powers, but it fails to provide sufficient guardrails to preserve a separation of powers between branches of government.
The high court highlighted how unprecedented the governor’s actions are, writing that “almost certainly, 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.” The majority noted how expansive the governor interpreted her powers to be under the 1945 riot law, claiming it empowered her to force people to stay in their homes, determine which businesses could be open and which ones had to close, prohibit selling and advertising certain goods, require children to wear masks while playing sports and even restrict people from receiving health care.
Whitmer argued the 1945 law was appropriately limited and constitutional because she could only issue orders that were “necessary to protect life and property.” The court observed, however, that this provides no real limit, because “life and property may be threatened by a virtually unlimited array of conduct, circumstances, and serendipitous occurrences.” Using the governor’s rationale, the majority pointed out, she could prohibit everyday activities, such as driving a car, in the attempt to “protect life and property.” In other words, this supposed limit is so broad as to be meaningless.
The dissent, led by Chief Justice Bridget McCormack, admitted that the 1945 law “may appear concerning at a superficial glance, given that it vests the governor, and the governor alone, with the authority to exercise the whole of the state’s police power.” But the dissenting justices went on to argue that because the law could be repealed by a citizen-led petition or by the Legislature, there is no problem.
Ironically, both of those actions require cooperation among various political actors, unlike the governor’s emergency decrees. The Legislature must pass a citizen-led petition into law, or it goes on the ballot and must be approved by voters in the next general election. And, of course, any legislative attempt to repeal the 1945 law would have to be signed by the governor, who is holding all the cards under a declared emergency and would surely veto it. These are nothing more than a superficial check on the governor’s power.
Despite the court’s ruling, Whitmer appears determined to continue commanding the state’s response to COVID-19. In a statement, she said there are “alternative sources of authority” that can be used to perpetuate her lockdown policies. These are the emergency powers that the director of the Michigan Department of Health and Human Services has under state law.
Inexplicably, until now, the governor has completely ignored these public health laws — specifically designed to guide the state’s response to epidemics — and executed a makeshift pandemic-response plan entirely of her own creation. It has proved to be so opaque, inconsistent and confusing that the state has had to respond to more than a thousand frequently asked questions in attempt to wrinkle out the details.
As important as this ruling is, if the governor continues shutting out the Legislature and sidesteps the Supreme Court’s ruling by issuing the same orders through a state department, Michigan residents should expect continued legal controversy and confusion. While there is room for debate about the effectiveness of many of Whitmer’s emergency orders, her unrelenting pursuit of unilateral control should be concerning to anyone who believes in the value of a balance of power in government.