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BSP Law Represents Michigan Senate and House of Representatives in Litigation about the Governor’s Emergency Powers

On October 2, 2020, the Michigan Supreme Court held that Governor Whitmer’s exercise of emergency powers has been unlawful since April 30, 2020.  BSP Law played a crucial role in the underlying litigation and in briefing the relevant questions before the Court.

In May, the Michigan Senate and House of Representatives, represented by BSP, sued Governor Whitmer in the Michigan Court of Claims.  Governor Whitmer principally relied on two statutes for authority to issue her COVID-19-related executive orders: the Emergency Management Act and the Emergency Powers of the Governor Act.

The Legislature argued that the statutes didn’t give the Governor power to issue these orders. 

  • The EMA allows a governor to exercise unilateral emergency power for only 28 days; after that, she must terminate the state of emergency unless the Legislature agrees via resolution to extend it.  The Legislature did not extend the state of emergency after April 30.  Governor Whitmer purported to comply with the EMA by terminating her state of emergency and then redeclaring the same state of emergency one minute later.  The Legislature argued that if such an end-run were permissible, it would render the 28-day requirement meaningless. 
  • The Legislature argued that the EPGA did not allow a governor to declare epidemic emergencies or statewide emergencies—only localized emergencies based on civil unrest.  If the Governor’s broader interpretation of the statute proved right, then the Legislature argued that the EPGA violated the Michigan Constitution’s separation of powers clause.  The Legislature specifically urged the court to adopt a certain federal-caselaw articulation of the nondelegation doctrine and hold that the EPGA’s “reasonable”-and-“necessary” standard was insufficient. 

The Court of Claims agreed with the Legislature on most every relevant point, but ultimately held that the EPGA was constitutional and authorized the executive orders.  The Court of Appeals then affirmed in a close 2-1 decision.  The Legislature sought to appeal that decision to the Supreme Court.

Meanwhile, following the Legislature’s lead, several medical groups filed their own lawsuit against Governor Whitmer in the United States District Court for the Western District of Michigan, raising functionally the same claims as the Legislature’s case.  The federal court certified questions to the Michigan Supreme Court asking about the applicability of the EMA and the applicability and constitutionality of the EPGA. 

The Michigan Supreme Court invited the Legislature to participate in the Certified Questions case as amicus curiae.  The Legislature’s amicus brief offered the same arguments the Legislature had made in the Court of Claims and Court of Appeals—most importantly including the Legislature’s unique understanding of the nondelegation doctrine.  Specifically, the Legislature advanced the articulations of the nondelegation doctrine as set out several federal-court opinions, including Synar v United States, 626 F Supp 1374 (D DC, 1986), Whitman v American Trucking Associations, Inc, 531 US 457; 121 S Ct 903; 149 L Ed 2d 1 (2001), and Justice Gorsuch’s dissent in Gundy v United States, 588 US ___, ___; 139 S Ct 2116, 2131 (2019).  These cases stand for the proposition that as the scope of a delegation increases, the standards governing that delegation must become increasingly robust: in other words, greater power requires greater standards.  The Legislature argued that these cases were consistent with and logically advanced Michigan’s own nondelegation-doctrine caselaw. 

After briefing an argument from the Legislature, Plaintiffs, and others, the Michigan Supreme Court held in Plaintiffs’ and the Legislature’s favor on both questions on October 2.  The Court unanimously agreed with the Legislature’s interpretation of the EMA, holding 7-0 that Governor Whitmer had no authority under it after April 30.  By a 4-3 majority, the Court further held that the EPGA was unconstitutional.  In doing so, the Court specifically adopted as the law of Michigan the articulation of the nondelegation doctrine set out in Synar and Whitman—the specific cases the Legislature cited.  Applying that standard, the Supreme Court held that the EPGA’s standards—i.e., that a governor’s orders be “reasonable” and “necessary” to address an emergency—were insufficient.

This is, first and foremost, a win for Michigan’s constitutional structure and ten million citizens.  It is no less a victory for the Legislature, which can now resume its role as Michigan’s lawmaking and policymaking body.  And finally, this is a team victory for BSP Law Team.  Besides the five BSP attorneys on the caption—Patrick Seyferth, Stephanie Douglas, Michael Williams, Susan McKeever, and Frankie Dame—many other BSP attorneys and support staff played crucial roles throughout this litigation process. 

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