Court Declares Gov. Whitmer’s COVID Emergency Powers Unconstitutional

This case relies, in part, on the Court’s interpretation of the nondelegation doctrine, which states that the legislature cannot delegate the power to make laws to other entities (such as executive offices, the bureaucracy, and others). At a federal level, the nondelegation doctrine has been a favorite argument for legal conservatives seeking to limit government agencies’ regulatory authority, including environmental regulatory agencies. 

In this case, the Michigan Supreme Court held that the Emergency Powers of the Governor Act (EPGA), which Governor Whitmer used to justify her COVID-19 executive orders, is unconstitutional because it delegates legislative power to the executive branch in violation of the Michigan Constitution. The Court’s ruling could affect future environmental regulation efforts, as the nondelegation doctrine has the potential to severely limit the power of an executive to enact needed environmental regulations. Additionally, this ruling limits the Governor’s authority to act quickly and decisively during emergency situations.

In this case, the Michigan Supreme Court answered two certified questions from the United States District Court for the Western District of Michigan regarding the emergency powers of the Governor of Michigan. The Court found that Governor Whitmer did not have authority after April 30, 2020 to issue or renew any executive orders related to COVID-19 under the Emergency Management Act (EMA). The Court also concluded that the Emergency Powers of the Governor Act (EPGA) is unconstitutional because it violates the Non-Delegation Clause, contained in Article 3, Section 2 of the Michigan Constitution.

Three healthcare providers and one individual plaintiff sued the Governor of Michigan, the Attorney General of Michigan, and the Director of Michigan’s Department of Health and Human Services in the United States District Court for the Western District of Michigan, challenging Executive Order No. 2020-17, which prohibited healthcare providers from performing nonessential procedures.

On April 1, 2020, Governor Whitmer declared a state of emergency under the EPGA and a state of emergency and a state of disaster under the EMA. She also requested that the Michigan Legislature extend the declarations by 70 days. However, the Legislature only extended the declarations through April 30.

On April 30, 2020, Governor Whitmer terminated her declaration under the EMA but indicated that a state of emergency remained declared under the EPGA. In addition, she redeclared a state of emergency and a state of disaster under the EMA. The plaintiffs sued in federal court, arguing that Governor Whitmer did not have the authority to issue or renew any executive orders relating to COVID-19 after April 30, 2020 under the EMA or the EPGA. The plaintiffs also challenged the constitutionality of the EMA and the EPGA under the Michigan Constitution. The federal court then certified the questions discussed below to the Michigan Supreme Court.

1.    Did Governor Whitmer have authority after April 30, 2020 to issue or renew any executive orders related to COVID-19 under the Emergency Powers of the Governor Act (EPGA) or the Emergency Management Act (EMA)?

2.     Does the EPGA or the EMA violate the Separation of Powers Clause or the Non-Delegation Clause of the Michigan Constitution?

The Court unanimously held, in opinions by Justices Markman, Viviano, Bernstein and Chief Justice McCormack, that the Governor of Michigan did not have the authority to issue or renew any executive orders related to COVID-19 under the EMA after April 30, 2020. The Court concluded that the governor only had the authority to declare a state of emergency or a state of disaster once. After that order expired, the governor could only renew the order or issue a new executive order under the EMA with the authorization of the legislature.

A majority of the justices, including Markman, Zahra, Clement, and Viviano held that the Governor of Michigan did not possess the authority to exercise emergency powers under the EPGA because the EPGA unlawfully delegates legislative power to the executive branch in violation of the Michigan Constitution. While the majority did not agree with the plaintiffs’ arguments that COVID-19 did not constitute a situation where the public safety was imperiled, the Court found that the EPGA was unconstitutional under Article 3, Section 2 of the Michigan Constitution, which prohibits the exercise of legislative power by the executive branch. The Court found that the broad authority conferred by the EPGA, combined with the indefinite duration and the lack of precise standards included in the statute, rendered the act unconstitutional. The Court also found that the statute was inoperable when the unlawful delegation of power from the legislature to the governor was severed from the remainder of the EPGA. Therefore, the Court concluded, the EPGA is unconstitutional in its entirety.

Justice Viviano wrote a separate opinion, concurring in part and dissenting in part. While he agreed with the Court that Governor Whitmer’s executive orders issued after April 30, 2020 were invalid under the EMA, Viviano would have preferred the Court to resolve the issue with the EPGA on statutory, rather than constitutional grounds. He argued that the EPGA’s grant of power to the governor during public safety emergencies, including riots, energy shortages, and violent strikes, did not extend to public health issues such as epidemics. Viviano argued that the Court should avoid confronting constitutional questions when the statute could be construed as constitutional with a narrower interpretation. However, because the remainder of the Court had a broader interpretation of the EPGA that included public health emergencies, Viviano joined the majority’s holding that the EPGA is an unconstitutional delegation of legislative power.

Chief Justice McCormack, joined by Justices Bernstein and Cavanagh, also wrote an opinion concurring in part and dissenting in part. Justice Bernstein also wrote a separate opinion, which concurred in part and dissented in part on similar grounds as Chief Justice McCormack. McCormack and Bernstein argued that since statutes have only been struck down on nondelegation grounds when they contain no standard, and since some standard was included in the EPGA’s delegation, the statute should survive the constitutional challenge. They argued that the statute’s conferred power to the governor to “promulgate reasonable orders…[that] she considers necessary to protect life and property or to bring the situation within the affected area under control” amounted to sufficient standards and are “as precise as the subject matter permits.” Both McCormack and Bernstein also pointed out that invalidating the statute on constitutional grounds is unnecessary because there are other judicial and political remedies available, including that the governor is politically accountable, that the EPGA could be repealed, and that enforcement of individual executive orders could be challenged in the courts. Therefore, they would not strike down the EPGA as unconstitutional.