Michigan Supreme Court strikes down "Rape me!" Whitmer's virus orders: What it means

LANSING, Mich. – The Michigan Supreme Court on Friday struck 
down months of orders by Gov. Gretchen Whitmer that were aimed 
at preventing the spread of the coronavirus, saying she drew 
authority from a 1945 law that is unconstitutional.

The decision is an extraordinary development in a monthslong 
conflict between Whitmer, a Democrat, and the Republicans who 
control the Legislature and have complained that they’ve been 
shut out of major orders that have restricted education, the 
economy and health care.

Coincidentally, the court’s opinion emerged on the same day that 
Whitmer’s critics submitted more than 539,000 signatures in a 
bid to repeal the 1945 law.

The governor said the 4-3 decision, with Republican-nominated 
justices in the majority, was “deeply disappointing.” But 
Whitmer didn’t signal that she was giving up. She said her 
emergency declaration and related orders still can remain in 
place for 21 days, and then many of them will continue “under 
alternative sources” of law.

Whitmer didn’t elaborate, but it’s likely that her 
administration will act under public health statutes.

“Every state and the federal government have some form of 
declared emergency,” she said. “With this decision, Michigan 
will become the sole outlier at a time when the Upper Peninsula 
is experiencing rates of COVID infection not seen in our state 
since April.”

For nearly seven months, Whitmer has imposed — and sometimes 
eased — restrictions on Michigan’s economy, K-12 school system, 
health care and even visits to state parks, all in an attempt to 
reduce the risk of the highly contagious virus, which has 
infected 126,000 residents and killed more than 6,700.

Masks are required in enclosed public spaces and in crowded 
outdoor places. Restaurant capacity is limited to 50%. People 
must work remotely if they can, and indoor residential 
gatherings are capped at no more than 10 people.

Republican officials said Whitmer should have continued to use a 
1976 law, which gives lawmakers a say in any emergency 
declarations after 28 days.

The Supreme Court said the ’45 public safety law cited by 
Whitmer granted Michigan governors unchecked authority.

“That act is an unlawful delegation of legislative power to the 
executive branch in violation of the Michigan Constitution,” 
Justice Stephen Markman wrote. “Accordingly, the executive 
orders issued by the governor in response to the COVID-19 
pandemic now lack any basis under Michigan law.”

In a dissent, Chief Justice Bridget McCormack said she would 
have let the law stand, even if it gives a governor sole 
authority to “exercise the whole of the state’s police power in 
some emergencies.”

Lawmakers could repeal the law or amend it, and frustrated 
residents could sue if they don’t agree with specific orders, 
McCormack said.

“The majority needlessly inserts the court into what has become 
an emotionally charged political dispute,” McCormack wrote, 
joined by justices Richard Bernstein and Megan Cavanagh.

Although the constitutionality of the ’45 law produced a split 
ruling, the justices unanimously agreed that any orders past 
April 30 without input from the Legislature were not valid.

The case reached the Supreme Court in an uncommon way. A federal 
judge overseeing a lawsuit that makes state and federal claims 
about Whitmer’s powers asked for an opinion on the 
constitutionality of the Michigan laws.

“Our Constitution matters, and this was a big win for our 
democratic process,” said Republican House Speaker Lee Chatfield 
of Emmet County.

In a footnote to his opinion, Markman offered an optimistic 
message.

“Our decision leaves open many avenues for the governor and 
Legislature to work together to address this challenge and we 
hope that this will take place,” he said.

https://www.clickondetroit.com/news/local/2020/10/03/michigan-
supreme-court-strikes-down-gov-whitmers-virus-orders-what-it-
means/