Michigan Supreme Court: COVID-19 Executive Orders of “No Continuing Legal Effect”

By Rebekah Page-Gourley posted 10 days ago


On October 2, 2020, the Michigan Supreme Court issued its opinion in Midwest Inst of Health, PLLC v Governor of Michigan (In re Certified Questions from the United States Dist Court), No 161492, ___ Mich ___, ___ NW2d ___ (Oct 2, 2020). The court unanimously held that Governor Whitmer did not have the authority under the Emergency Management Act of 1976 (EMA), MCL 30.401 et seq., to declare a “state of emergency” or “state of disaster” based on COVID-19 after April 30, 2020. The court determined that a gubernatorial declaration of a state of emergency under the EMA may only last for 28 days absent legislative approval of an extension. A majority of the court also held that Governor Whitmer does not have the authority to exercise emergency powers under the Emergency Powers of the Governor Act of 1945 (EPGA), MCL 10.31 et seq., because the act unlawfully delegates legislative power to the executive branch and is thus unconstitutional. 

On October 12, 2020, the Michigan Supreme Court granted a motion for immediate consideration in the Midwest Inst of Health case, and denied the governor’s motion to stay the precedential effect of the October 2, 2020, opinion until October 30. Midwest Inst of Health, PLLC v Governor of Michigan  (In re Certified Questions from the United States Dist Court), No 161492, ___ Mich ___, ___ NW2d ___ (Oct 12, 2020). The court also granted a motion for peremptory reversal in House of Representatives & Senate v Governor, No 353655, ___ Mich App ___, ___ NW2d ___ (Aug 21, 2020). In that case, the Michigan Court of Appeals had held that the governor has authority to issue executive orders under the EPGA and that the EPGA did not violate the constitution. The Michigan Supreme Court clarified that the EPGA “is incompatible with the Constitution of our state, and therefore, executive orders issued under that act are of no continuing legal effect. This order is effective upon entry.” House of Representatives & Senate v Governor, No 161917, ___ Mich ___, ___ NW2d ___ (Oct 12, 2020). 

There has already been movement to fill the gaps left by the invalidation of the executive orders. On the Monday after the Michigan Supreme Court issued its October 2, 2020, opinion, the Michigan Department of Health and Human Services (MDHHS) issued an emergency epidemic order under MCL 333.2253, a law “established specifically in response to the Spanish flu.” That order was replaced on October 9, 2020, with a more detailed Gathering Prohibition and Face Covering Order, effective through October 30, 2020. The new order includes workplace safety and contact-tracing provisions, among others. In addition to the MDHHS order, a number of municipal health departments have issued their own orders. See, for example, Washtenaw County, City of Detroit, and Ingham County.

One of the biggest questions in the wake of the Michigan Supreme Court’s ruling on the governor’s COVID-19 executive orders is the fate of the temporary expansion of unemployment benefits under Mich Exec Order No 2020-76. There is movement in the legislature to codify the expansion of benefits, but the bill in the House of Representatives is tie-barred to a package of bills offering businesses protection against some legal claims over COVID-19 exposure. There are also ongoing negotiations over legislation regarding remote witnessing and notarization.