State Faces Daunting Prospect of Self-Policing Health and Safety

A. Vince Colella

‍Moss & Colella P.C.

On Friday, October 2, the Michigan Supreme Court in a 4-3 narrow majority opinion eradicated more than 180 executive orders issued by Gov. Gretchen Whitmer in response to the coronavirus pandemic.  The opinion, authored by Justice Stephen Markman, held “the executive orders issued by the Governor in response to the COVID-19 pandemic now lack any basis under Michigan law.” Midwest Inst. of Health, PLLC v. Governor of Mich. (In re Certified Questions from the United States Dist. Court), No. 161492, 2020 Mich. LEXIS 1758 (Oct. 2, 2020). The case arose out of federal claims brought by healthcare providers that were prohibited from performing nonessential procedures while EO 2020-17 was in effect and a patient who was prohibited from undergoing knee-replacement surgery.

Procedurally, the Federal District Court certified the questions to the Michigan Supreme Court after the defendants unsuccessfully attempted to raise an immunity defense under the 11th Amendment. The court rejected the argument on the basis that it was not plead timely in its principal briefs or initial responses. An appeal to the 6th Circuit is currently pending. Meanwhile, the Federal Court asked the Michigan Supremes to address two issues, (1) Whether the governor has the “authority” (after April 30, 2020) to issue or renew executive orders related to COVID-19 pandemic; and (2) whether the Emergency Powers of Governor Act (“EPGA”) or Emergency Management Act (“EMA”) violate the separation of powers or the Non-Delegation Clauses of the Michigan Constitution.

Under the EMA, [MCL 30.403], “[The] Governor shall, by executive order, declare a state of disaster, if, she finds a disaster or threat exists. the state of disaster shall continue until the treat passes or cease to exist.
After 28 days, the governor shall issue an executive order or proclamation declaring the state of emergency terminated, unless a request by the governor for an extension of the state of emergency for a specific number of days is approved by resolution of both houses of the legislature.” Given that MCL 30.403(3) and (4) require the governor to terminate a declaration of a state of emergency or state of disaster after 28 days in the absence of a legislatively authorized extension, the court did not believe that the legislature intended to allow the governor to redeclare under the EMA the identical state of emergency and state of disaster under these circumstances. “To allow such a redeclaration would effectively render the 28-day limitation a nullity.” Id at LEXIS 9.

Moreover, in response to the question of whether the EPGA provided the statutory authority for the governor to issue her executive orders, the court examined the broad scope of the act leading to question its constitutionality. Ultimately, the court determined that the delegation of power to the governor “to promulgate reasonable orders, rules and regulations as he or she considers necessary to protect life and property” constitutes an unlawful delegation of legislative power to the executive, the justices wrote. Id at LEXIS 43. Accordingly, the EPGA was found to be in violation of the Michigan Constitution. As a consequence, neither statute provides a basis for the Governor to issue serial executive orders.

What does this mean for Michigan’s residents? As for Michigan residents, mandatory adherence to basic health and safety guidelines promulgated by the Center for Disease Control, i.e.., stay home, wear face coverings in indoor public spaces (including children), socially distance more than 6 feet, etc., may no longer be enforced. For businesses, compliance with the numerous workplace safeguards requiring daily health screenings of employees and closure of restaurants, bars, taverns, etc., is no longer valid. In its abrogation of the governor’s orders, the Court sharply pointed out that the sweeping scope of the subjects covered resulted in the displacement of livelihood of residents across the state and throughout wide-ranging industries.