Executive Orders: Is It All Over?

By Arthur H. Siegal posted 17 days ago


So, is it all over?  In a word. No.

On Friday, the Michigan Supreme Court issued a series of opinions which dealt with the Governor’s authority and powers under two laws – the 1976 law and the 1945 law.  Earlier decisions under the 1976 law and the Supreme Court Friday all agreed that the 1976 Act had a 28 day limit and that the Governor could not extend that on her own.

As to the 1945 law, the Court rejected the challenges to arguments about reading the two laws as one and that somehow it was limited to responding to riots, it was limited to emergencies covering less than the whole state, that public safety (addressed) was different than public health (not) and that emergencies had to be of short duration.

Then the 4 judge majority turned to the constitutional arguments and focused on principles of administrative law.  They ultimately ruled that the duration of the governor’s powers (no limit), and the lack of specificity as to what she could and could not do  rendered the delegation of power to the Governor unconstitutional.

So, is it over? The Governor is powerless? Not yet.

First, the Governor has 21 days to argue for a rehearing and has contended that her order remains in effect until then.  No one has argued to the contrary and the Supreme Court did not issue an Order, only an Opinion.  However, the Attorney General has stated that she will not be enforcing the Governor’s EO’s.

Second, this decision was in response to a federal court (WD of Michigan)’s certification of two questions to the Supreme Court and that court has not yet spoken. Of course, it is likely that it will soon, but whether it rules that the Governor was powerless or that the question is now moot because the Order the plaintiffs challenged is long since replaced with more permissive orders, is yet to be seen.

The Supreme Court does have basically the same case waiting in the wings for an actual Michigan decision and barring some new strategy or argument, we know what that ruling is going to be.

The Governor could go to the Legislature, “hat in hand” and ask them to issue an emergency declaration under the 1976 law, something she seemed publicly unwilling to do. Who knows what was going on behind the scenes. The Republican Legislature has been demanding a role in the process, they now have it and with President Trump having contracted the disease, will they punt or step up?  Senate Majority leader Shirkey has said he’s willing to talk about some issues, but not willing to authorize the Governor’s broad controls.


So is it over? Are all the Orders gone? Not so fast.

There is a Michigan law that authorizes agencies to issue 6 month emergency rules if the agency finds that preservation of the public health, safety or welfare requires foregoing the normal rulemaking process and these can be extended for an additional 6 months. MCL 24.248

The Michigan Health Department has issued a number of its own COVID Orders already and we likely will be seeing more.  A number of the prior Health Department Orders were framed as emergency orders under MCL 333.2253 and “reinforced” the Governor’s Orders – do they stand on their own? It remains to be seen.  On Monday, the Health Department issued one order (perhaps the first of many) that paralleled many of the Governor’s requirements for masks and gathering sizes. Republicans have argued that this was an end run around the Court but the Health Department’s authority to issue such orders is clearer and more specific than the Governor’s so, we may be back in Court.   

On Saturday,  the Oakland County health department issued an order requiring mask use by residents when they're in public places. The order, which mirrors Whitmer's mask orders, applies to schoolchildren while inside school buildings.  Oakland County said it was planning to issue additional health orders "in the coming days to cover capacity at restaurants, bars, employee health screenings and other public health concerns," according to a news release.  After the State Health Department issued its order, Oakland County rescinded its County specific order.

On Sunday, Ingham County issued four emergency orders that adopted Whitmer's mask mandate, require employers to screen employees for COVID-19 symptoms, setting restaurant and bar capacities at 50 percent or 125 people, whichever is less. Ingham County also set capacity limits for outdoor event venues at a maximum of 1,000 attendees and no more than 30 percent of seating capacity.  On Monday, Washtenaw also issued four Emergency Orders paralleling Ingham’s Orders.

If past is prologue, we will see Wayne and some other counties do likewise.