Michigan Supreme Court Invalidates Governor’s COVID Order
The case is In re Certified Questions; I doubt I’ll be able to analyze it in detail, but here is the court’s summary of the opinions:
[1.] The Michigan Supreme Court, in opinions by Justice Markman, Chief Justice McCormack, Justice Viviano, and Justice Bernstein, unanimously held: … The Governor did not have authority after April 30, 2020, to issue or renew any executive orders related to the COVID19 pandemic under the EMA [Emergency Management Act of 1976].
[2.] The Michigan Supreme Court, in an opinion by Justice Markman joined in full by Justices Zahra and Clement and joined as to Parts III(A), (B), (C)(2), and IV by Justice Viviano, further held: … The Governor did not possess the authority to exercise emergency powers under the EPGA [Emergency Powers of the Governor Act of 1945] because the act unlawfully delegates legislative power to the executive branch in violation of the Michigan Constitution.
[3.] Justice Markman, joined by Justices Zahra and Clement, concluded that the Governor lacked the authority to declare a “state of emergency” or a “state of disaster” under the EMA after April 30, 2020, on the basis of the COVID-19 pandemic and that the EPGA violated the Michigan Constitution because it delegated to the executive branch the legislative powers of state government and allowed the executive branch to exercise those powers indefinitely.
First, under the EMA, the Governor only possessed the authority or obligation to declare a state of emergency or state of disaster once and then had to terminate that declaration when the Legislature did not authorize an extension; the Governor possessed no authority to redeclare the same state of emergency or state of disaster and thereby avoid the Legislature’s limitation on her authority.
Second, regarding the statutory language of the EPGA, plaintiffs’ argument that an emergency must be short-lived and the Legislature’s argument that the EPGA was only intended to address local emergencies were textually
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