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Legal Brief: Whitmer Defends A Power Grab That Could Last Years

Michigan Supreme Court case could strip governor’s extraordinary emergency powers

On Sept. 2 the Michigan Supreme Court will hear arguments on a case that could strip Gov. Gretchen Whitmer of the power to issue state-of-emergency executive orders that effect every aspect of residents’ lives.

The 1945 law on which Whitmer bases her authority to impose such orders requires no legislative approval and imposes no limit on how long a governor may employ such powers. It is being challenged as a violation of the separation of powers doctrine that is the core of the Michigan Constitution of 1963, which is based on the U.S. Constitution of 1787.

A brief filed by the Mackinac Center Legal Foundation points to Whitmer’s six-phase plan to reopen Michigan. It states: “MI Safe Start is not the sort of document that one would expect could be drawn up during an emergency. Instead, it is a detailed blueprint addressing every aspect of daily life through every phase of the pandemic, including the sixth ‘Post-pandemic’ phase. And Michigan will not reach the sixth ‘Post-pandemic’ phase anytime soon. From the Governor’s perspective, Michigan enters that phase only once the state has achieved ‘sufficient community immunity’ and there is ‘high uptake of an effective therapy or vaccine.’ Phase 6 could be years down the road.”

The brief continues: “There is a real possibility that the Governor will continue for many months, if not years, to make law by executive order, enacting measures that significantly impact the rights and liberties of Michigan citizens without legislative input.”