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Hold Tight Following the Supreme Court's October 2, 2020 Order

This past Friday, the Michigan Supreme Court ruled that Governor Whitmer had no legal authority to issue emergency executive orders in response to the COVID-19 pandemic after April 30, 2020. The Court’s Opinion analyzes the state of emergency that was declared under the Emergency Management Act (“EMA”) and the Emergency Powers of Governor Act (“EPGA”). Briefly:

  • The Michigan Supreme Court unanimously held that the EMA did not authorize the Governor to issue executive orders past April 30, 2020, because the Legislature only approved extending the state of emergency to that date.  
  • A majority of the Court also held that the Governor’s executive orders were invalid under the EPGA because that law violates the Michigan Constitution.

What Now?
Although the Court held that the Governor’s executive orders since April 30th “now lack any basis under Michigan law,” those executive orders might still be effective during continuing court procedures, including:

  • Parties have 21 days to seek rehearing of Supreme Court judgments, which do not take effect during that time. The Governor has announced that she will seek rehearing, which could further delay the effect of the Court’s Opinion.
  • The Supreme Court decided these questions because the federal district court certified them to the Court. Since this is a federal case, the federal court may need to take some action before the Supreme Court Opinion can affect the Governor’s executive orders.

So the Michigan Supreme Court has ruled the Governor’s post-April 30, 2020 executive orders to be unlawful, but the executive orders may still remain in effect pending further action by the Supreme Court or the federal district court.  We will keep you updated as the situation continues to develop. 

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