On Friday, October 2, 2020, amid news of the president being hospitalized with COVID-19, our own state’s laws were upended by a Michigan Supreme Court ruling.
The Michigan Supreme Court ruled the governor lacked the authority to extend the State of Emergency related to the COVID-19 pandemic in April 2020. The case was heard on federal certified question from the federal court in the Western District of Michigan. In its own opinion, the Michigan Supreme court summarized its ruling succinctly:
“[F]irst, the Governor did not possess the authority under the Emergency Management Act of 1976 (the EMA), MCL 30.401 et seq., to declare a “state of emergency” or “state of disaster” based on the COVID-19 pandemic after April 30, 2020; and second, the Governor does not possess the authority to exercise emergency powers under the Emergency Powers of the Governor Act of 1945 (the EPGA), MCL 10.31 et seq., because that act is an unlawful delegation of legislative power to the executive branch in violation of the Michigan Constitution. Accordingly, the executive orders issued by the Governor in response to the COVID-19 pandemic now lack any basis under Michigan law.”
Although the initial declaration of State of Emergency was valid under the EMA, the court was unanimous in ruling the extensions were not valid under the EMA. The majority of the Court ruled further that the EPGA was itself unconstitutional.
What does this mean for businesses previously tasked with following the Governor’s Executive Orders?
While the Governor issued a statement stating that the orders will remain in effect for 21 days, presumably referring to the amount of time to request a motion for reconsideration, some legal scholars have pointed out that she does not have that right given the Court’s order arose from a federal certified question.
This view was reiterated when in wake of the ruling, Michigan Attorney General, Dana Nessel, announced that she will no longer be enforcing the Executive Orders through criminal prosecution. Given the Attorney General’s announcement, the Executive Orders will no longer be enforced.
The Governor’s statement implied that some of the orders would continue to be valid under “alternative sources of authority” that were not subject of the ruling. It appears Michigan administrative agencies, like MIOSHA and Department of Licensing and Regulatory Affairs, could issue rules encompassing many of the regulations contained in the executive orders using the Administrative Procedures Act. Additionally, county health departments will pick up where the Governor left off using the Public Health Code (Public Act 368 of 1978) as authority to protect the public during a pandemic.
Oakland county and Ingham county governments have already issued their own restrictions based on the public health code. For example, the Ingham County Health Officer issued orders to keep several COVID protections in place, including, requiring masks, restricting restaurant capacity to 50%, and health screening of employees. Meanwhile, Oakland County issued an order requiring masks be work in any indoor space.
As of this writing, it is difficult to assess the precise impact of this ruling on every one of the 192 Executive Orders issued, and whether they are still valid under some other law or subject to local laws. At this time, business owners should not make any drastic changes in operations given the rules may be promulgated from the administrative agencies. Businesses should continue to use common sense, contact the county in which they reside, follow CDC guidance on how to operate the workplace, and continue to operate safely and with caution amid the pandemic.