The reporting of the Court’s decision today has been, at best, misleading. It has been implied that a slim majority of the Court decided that the Governor did not have the authority to extend her order under the Emergency Management Act.
A review of the opinion of the Court clearly states that the Michigan Supreme Court unanimously held that the Governor did not have authority after April 30, 2020, to issue or renew any executive orders related to the COVID19 pandemic under the Emergency Management Act of 1976.
The highlights of In re Certified Questions is below:
- First, in opinions by Justice Markman, Chief Justice McCormack, Justice Viviano, and Justice Bernstein, the Michigan Supreme Court, unanimously held that the Governor did not have authority after April 30, 2020, to issue or renew any executive orders related to the COVID19 pandemic under the EMA [Emergency Management Act of 1976]
- Next, in an opinion by Justice Markman joined in full by Justices Zahra and Clement and joined as to Parts III(A), (B), (C)(2), and IV by Justice Viviano, the Court further held that the Governor did not possess the authority to exercise emergency powers under the EPGA [Emergency Powers of the Governor Act of 1945] because the act unlawfully delegates legislative power to the executive branch in violation of the Michigan Constitution.
- Justice Markman, joined by Justices Zahra and Clement, concluded that the Governor lacked the authority to declare a “state of emergency” or a “state of disaster” under the EMA after April 30, 2020, on the basis of the COVID-19 pandemic and that the EPGA violated the Michigan Constitution because it delegated to the executive branch the legislative powers of state government and allowed the executive branch to exercise those powers indefinitely:
- Justice Viviano, concurring in part and dissenting in part, joined Justice Markman’s opinion to the extent that it concluded that the certified questions should be answered, held that the Governor’s executive orders issued after April 30, 2020, were not valid under the EMA, and held that the EPGA, as construed by the majority in Justice Markman’s opinion, constituted an unconstitutional delegation of legislative power.
- Chief Justice McCormack, joined by Justices Bernstein and Cavanagh, concurring in part and dissenting in part, concurred with Justice Markman’s opinion to the extent that it concluded that the certified questions should be answered; held that the Governor’s executive orders issued after April 30, 2020, were not valid under the EMA; and rejected plaintiffs’ statutory arguments that the EPGA did not authorize the Governor’s executive orders.However, Chief Justice McCormack dissented from the majority’s constitutional ruling striking down the EPGA.
- Justice Bernstein, concurring in part and dissenting in part, disagreed with the majority’s conclusion that the EPGA is unconstitutional. Justice Bernstein would continue to apply the “standards” test that the Michigan Supreme Court has used to analyze nondelegation challenges, would leave the decision whether to revisit the nondelegation doctrine to the United States Supreme Court, and would leave to the people of Michigan the right to mount challenges to individual orders issued under the EPGA.
Because the Michigan Supreme Court was only answering questions certified by a federal district court, this decision doesn’t itself issue any injunction against the state government. But the conclusion of Justice Markman’s opinion, which seems to capture the view of the majority, is clear: “[T]he executive orders issued by the Governor in response to the COVID-19 pandemic now lack any basis under Michigan law.” The opinion adds, though, “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.”