Michigan Supreme Court Strikes Down Governor Whitmer’s COVID Orders

At 4:36 p.m., this afternoon, Friday, October, 2, 2020,the Michigan Supreme Court issued its opinion in the case of In Re Certified Questions from the United States District Court, Western District of Michigan (Midwest Institute of Health, PLLC v Governor Whitmer). The Court held that the Governor did not possess authority under the Emergency Management Act to declare a state of emergency or a state of disaster based on the COVID-19 pandemic after April 30, 2020. The Court further held that the Governor does not possess the authority to exercise emergency powers under the Emergency Powers of the Governor Act, because that statute violates the Michigan Constitution as an unlawful delegation of legislative power to the executive branch. As a result, the Court concluded that “the executive orders issued by the Governor in response to the COVID-19 pandemic lack any basis under Michigan law.” The Court indicated that its decision “leaves open many avenues for the Governor and Legislature to work together” to address the challenges posed by the pandemic.

Although the Michigan Supreme Court has informed the federal court that the COVID-19 related executive orders are invalid, we anticipate and hope that organizations will continue to implement and follow reasonable health and safety protocols that have helped flatten the curve. It is too early to gauge the impact of this decision. We do expect the Legislature to pass legislation to mandate certain protocols.

We will issue additional alerts as this continues to unfold.