Michigan Supreme Court ruling shouldn't take effect until Oct. 30, Gov. Whitmer says

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Michigan Gov. Gretchen Whitmer speaks to media outside of Meridian Elementary School in Sanford, Michigan, on May 27, 2020. - Ryan Garza/Detroit Free Press/TNS

DAVISON, Mich. — Gov. Gretchen Whitmer’s administration is asking the Michigan Supreme Court to clarify its decision to strike down her emergency powers during the COVID-19 pandemic doesn’t take effect until Oct. 30.

Whitmer and Robert Gordon, director of the Department of Health and Human Services, filed a motion on the matter Monday, three days after the high court’s decision.

Without the 28-day “transition,” Michigan workers and their families could lose unemployment benefits and “critical measures meant to prevent the spread of the COVID-19 virus” would “immediately lapse,” the governor’s office said in a press release.

Michigan Governor Gretchen Whitmer speaks during a press conference, Wednesday, June 17, 2020.

“We need this transition period to protect the 830,000 Michigan workers and families who are depending on unemployment benefits to pay their bills and put food on the table, and to protect Michiganders everywhere who are counting on their leaders to protect them,” Whitmer said in a statement.

On Friday, the Michigan Supreme Court unanimously ruled Whitmer had no authority under a 1976 emergency law to extend the state of emergency past April 30 without approval from the GOP-controlled Legislature. The governor has issued 123 executive orders since that date. They covered mask requirements, limitations on public gathering, workplace safety standards and expanding unemployment benefits.

The court split 4-3 in ruling that it was unconstitutional for Whitmer to use a separate law to issue executive orders — the 1945 Emergency Powers of the Governor Act — because it improperly delegated legislative powers to the executive branch.

“Accordingly, the executive orders issued by the governor in response to the COVID-19 pandemic now lack any basis under Michigan law,” Justice Stephen Markman wrote in the majority opinion.

Attorney General Dana Nessel’s office initially told Whitmer’s team that the executive orders would stay in effect for 21 days, the period in which a party could seek reconsideration or a rehearing, Whitmer said during an appearance Monday.

Lawyers for the medical centers that sued the governor have maintained the Supreme Court’s ruling makes Whitmer’s orders immediately unenforceable.

In the motion from Whitmer and Gordon on Monday, they argued the Supreme Court’s opinion should become effective for enforcement “not less than 21 days or more than 28 days” under court rules governing other court opinions.

But Nessel on Sunday announced she would not enforce Whitmer’s executive orders through criminal prosecution, but said she did believe the 21-day delay remained in effect.

“I’m not sure where that is,” Whitmer told reporters Monday, referring to the status of the 21-day delay. “And that’s why we’re seeking clarity from the court today,”

Whitmer said the fallout from the Supreme Court is still being “ascertained.”

“We’re studying it to make sure that where we can act we do,” she said.

But she maintained some of her orders — such as mask use — remain in place under rules issued by the Michigan Department of Health and Human Services more than two months ago.

“We know that masks work and it’s on all of us to do our part and to have some personal responsibility to keep ourselves, our families and our economy going,” Whitmer said.

The July 29 order from department Director Robert Gordon incorporated three of Whitmer’s executive orders governing mask use, gathering and event sizes, and workplace protections.

The order said those rules could be enforced by police officers, prosecutors and the attorney general, and are punishable by a fine of up to $1,000. Appeals of the fines would be heard by the Michigan Office of Administrative Hearings and Rules.

The Democratic governor’s request comes three days after Michigan’s high court struck down her continued use of emergency powers in responding to the COVID-19 pandemic. The landmark decision threw a cloud of uncertainty over the policies that have defined Michigan’s response to a virus that’s been linked to 6,801 deaths in the state.

Whitmer has used her executive powers to require Michiganians wear masks in public spaces, limit capacity at restaurants, institute workplace safety standards and expand unemployment benefits.

Since the state’s chief law enforcement officer declined to keep enforcing the governor’s COVID-19 restrictions, the Whitmer administration is now forced to pursue other ways to maintain public health restrictions after initially insisting the orders remained in effect pending a supposed 21-day legal reconsideration period.

Nessel’s spokesman Ryan Jarvi clarified on Sunday that Nessel believes a 21-day delay on Friday court ruling still applies, but “the AG is just choosing not to exercise her prosecutorial discretion during this 21-day time period.” He declined further comment when asked why Nessel was choosing not to prosecute.


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