On Monday, the Michigan Supreme Court ruled that Gov. Gretchen Whitmer (D-Mich.) could not effectively resurrect her lockdown restrictions to fight the Wuhan coronavirus pandemic for 21 days. Early this month, the court had struck down Whitmer’s decision to extend the lockdown past April 30. Whitmer had argued that the Court’s ruling could not go into effect for 21 days, but the court rejected that claim on Monday.
Whitmer had claimed that the Emergency Management Act of 1976 and the Emergency Powers of the Governor Act of 1945 enabled her to extend lockdowns past April 30, but the court struck down the 1945 law as 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 the Constitution.”
In a statement after the ruling on October 2, Whitmer claimed, “It is important to note that this ruling does not take effect for at least 21 days, and until then, my emergency declaration and orders retain the force of law.” She called the ruling “deeply disappointing.” The governor’s attorneys later asked for 28 days to give the administration time to negotiate with lawmakers and put new restrictions in place.
Yet on Monday, the court ruled that the 21-day rule does not apply in this case because the ruling came in response to questions from a federal judge who sought clarity on the legality of the governor’s actions, Crain’s Detroit Business reported. Chief Justice Bridget Mary McCormack wrote, “I do not believe the court has the authority to grant the remedy the governor requests. … Our court rules do not provide a way for any party to the lawsuit in the (federal) district court to challenge our answer in this court.”
After the Oct. 2 ruling, Whitmer’s health department director has imposed a new mask mandate and restrictions for public-facing businesses and gatherings under the public health code, which remained outside the scope of the legal challenge.
The Oct. 2 ruling condemned the excessive sweep of Whitmer’s lockdown, noting that a wide variety of businesses had to close as a result of her orders, including “restaurants, food courts, cafes, coffeehouses, bars, taverns, brew pubs, breweries, microbreweries, distilleries, wineries, tasting rooms, clubs, hookah bars, cigar bars, vaping lounges, barbershops, hair salons, nail salons, tanning salons, tattoo parlors, schools, churches, theaters, cinemas, libraries, museums, gymnasiums, fitness centers, public swimming pools, recreation centers, indoor sports facilities, indoor exercise facilities, exercise studios, spas, casinos, and racetracks.”
“These policies exhibit a sweeping scope, both with regard to the subjects covered and the power exercised over those subjects. Indeed, they rest on an assertion of power to reorder social life and to limit, if not altogether displace, the livelihoods of residents across the state and throughout wide-ranging industries,” the ruling added.
Whitmer became notorious for excessive lockdown restrictions, even going so far as to single out gardening supplies for a specific ban. The Michigan House of Representatives voted down an extension of Whitmer’s original lockdown order, but she insisted that she had the power to override the legislature. After Whitmer overrode the legislature, hundreds of protesters flooded the Michigan Capitol, demanding an end to the lockdown.
It seems Whitmer has finally lost that battle, and now she must negotiate with the legislature to craft new restrictions. Michiganders should not lose their liberty for months on end without a serious debate as to the necessity of a lockdown. The court was right to reign in Whitmer’s whims, and now the governor has no choice but to work with the Republicans in the state house.
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Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.