Michigan high court justices expressed unease with their governor’s vast authority to impose health orders meant to slow the spread of Covid-19 during a marathon oral argument Wednesday.
Nearly all of the justices asked questions ranging from skeptical to outright hostile about the more than 170 health orders Gov. Gretchen Whitmer (D) issued over the last six months.
While questions from a majority of the seven justices probed where to draw the line on Whitmer’s power, others questioned the fundamental basis for orders they said threw out individual liberties or scuttled restrictions on Whitmer’s authority.
Small health-care providers prohibited from carrying out elective procedures during the pandemic and a patient brought the lawsuit. While the order barring elective procedures was rescinded, the case, and at least three others, have carried on as broad assaults to Whitmer’s authority to enact orders without the consent of the General Assembly.
“She’s driven sort of a Mack truck through that non-exhaustive list to now include any sorts of regulation of private activity of our 10 million citizens that one can imagine,” Justice David Viviano said. “Only the governor’s imagination seems to be the limit.”
Delegated Power
The argument was sent to the court by a federal district judge seeking the Michigan Supreme Court’s ruling on whether Whitmer’s unilateral extension of an emergency order violated the powers given her by the legislature to respond to crises and her powers within Michigan’s constitution.
States are invested with “police power,” which allows them to protect citizens in times of peril and promote public safety and public health. At least four lawsuits challenge how far the state can go and how far the governor can go on her own.
A state court ruled that Whitmer exceeded her authority under one Michigan emergency powers statute that requires legislative re-approval of an emergency order within 28 days. But that court also ruled Whitmer could go her own way, even without legislative approval, under a separate statute.
Attorneys representing Whitmer, Attorney General Dana Nessel (D), and the Democratic members of the General Assembly all said the statutes appropriately delegated power to Whitmer so she can prevent the spread of a pandemic. The companies’ attorney Amy Murphy said the statute Whitmer relied upon didn’t have sufficient procedural safeguards to stop a governor from exercising complete control against the state constitution.
“This case is not about the wisdom of the governor’s decision during the pandemic,” said Murphy, an attorney in the Grand Rapids office of Miller, Johnson, Snell & Cummiskey, PLC. “It’s about the structure of our government.”
Deputy Solicitor General Ann Sherman defended the governor’s authority and said political options left the general assembly and voters with power to counter the governor if they wanted to. The legislature could build a coalition to form a veto-proof majority and change state law, and voters could recall Whitmer or vote her out of office in the 2022 election.
But those options are “quite a ways off in light of what many view to be infringements of personal liberties,” Justice Brian Zahra said. “So I don’t view them as adequate responses to these arguments that these orders are inappropriate.”
Limiting Principle
The remaining five justices’ questions drove at whether the statutes should be read in a way that imposes limiting principles on Whitmer’s power.
Chief Justice Bridget McCormack and Justices Stephen Markman, Elizabeth Clement, and Megan Cavanagh drilled into the health-care providers’ arguments that the court should impose a 28-day time-limit that would nullify Whitmer’s orders unless she receives legislative approval.
Eric Restuccia, Whitmer’s attorney, said such a limit isn’t necessary, and that every state in the country grants similar powers to governors to deal with a public health crisis.
Justice Richard Bernstein, who is blind, said he struggles with how to balance the fact that three people he knows have died from Covid-19, but his fundamental beliefs as a judge are that the government can’t infringe rights guaranteed to citizens in the U.S. Constitution—rights that Whitmer’s orders curtailed for Michiganders who could be pulled over for violating a stay-at-home order or have their goods searched so that police could investigate whether a shopper was buying items deemed non-essential.
“Once rights are forfeited, or once rights are taken away, they are difficult if not impossible to people to gain them back,” he said.
The case is In re Certified Questions from the U.S. Dist. Court, Western Dist. of Michigan, S. Div., Mich., No. 161492, oral argument 9/9/20.
