Governor Whitmer Extends and Renews Declaration of Emergency Through May 28; Michigan Legislature Indicates That It May Challenge the Legality of the Extension
***Information and guidance in client updates was up to date at time of publication. During the pandemic, information and guidance has been changing rapidly. If you have any questions about the information contained in a client update, please contact the author(s) or your Miller Johnson attorney.***
On April 30, 2020, Governor Whitmer issued three executive orders to renew and extend her declaration of a state of emergency within the state of Michigan through May 28, 2020. The orders are effective immediately. The Michigan Legislature, which declined to authorize any extension of the state of emergency in Michigan beyond April 30, 2020, has indicated that it may challenge the legality of Governor Whitmer’s executive orders. Because many of the Governor’s executive orders pertaining to the COVID-19 pandemic are effective only if there is an underlying state of emergency, any litigation over the validity of the Governor’s April 30 executive orders may have significant consequences for the validity of Governor Whitmer’s other executive orders related to the COVID-19 pandemic, including Michigan’s Stay Home, Stay Safe order, which is currently in effect through May 15, 2020.
These three executive orders do not impose any new limitations on the continued operations of businesses that are permitted to operate under the current Stay Home, Stay Safe order.
The Executive Orders
First, Executive Order 2020-66 terminates the “state of emergency” and the “state of disaster” that were declared under the Emergency Management Act of 1976.
Second, Executive Order 2020-67 states that, notwithstanding Executive Order 2020-66, “a state of emergency remains declared” under a different statute—the Emergency Powers of the Governor Act of 1945. The declaration of emergency under this statute remains in effect until May 28, 2020. Executive Order 2020-67 predicates the extension of the state of emergency upon the same underlying circumstances—the COVID-19 pandemic—that supported the declaration of emergency that was terminated in Executive Order 2020-66.
Third, Executive Order 2020-68 declares a new state of emergency and state of disaster under the Emergency Management Act of 1976 until May 28, 2020. In other words, this executive order reinstates the state of emergency and state of disaster that were declared terminated in Executive Order 2020-66. Executive Order 2020-68 predicates the new declaration of a state of emergency on the same underlying circumstances—the COVID-19 pandemic—that supported the emergency that was terminated in Executive Order 2020-66.
The validity of these orders under state and federal laws will almost certainly be the topic of litigation in the near future.
Michigan Legislature May Challenge the Orders’ Legality
Governor Whitmer’s executive orders were entered shortly after the Michigan Legislature declined the Governor’s request to extend the declaration of emergency for an additional 28 days. Both houses of the Michigan Legislature authorized the Legislature to file legal actions challenging the legality of the Governor’s executive orders.
Many of the Governor’s executive orders relating to the COVID-19 pandemic—including Executive Order 2020-59, the current Stay Home, Stay Safe order—are predicated upon the existence of an underlying declaration of emergency. Thus, the validity of many of the Governor’s executive orders pertaining to the COVID-19 pandemic may be in question depending on whether the Governor’s declarations under Executive Orders 2020-67 and 2020-68 are valid.
Miller Johnson has counseled many businesses and sole proprietors on compliance with relevant executive orders, including Michigan’s Stay Home, Stay Safe Executive Order. Please contact your Miller Johnson attorney or the authors of this update with any questions regarding the potential implications that the Governor’s executive orders may have on you or your business.