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Court of Appeals rules in favor of Whitmer in GOP-led legislature lawsuit

Court of Appeals rules in favor of Whitmer in GOP-led legislature lawsuit

Republicans vow to continue fight

By Scott McClallen | The Center Square

(The Center Square) – The Court of Appeals in a 2-1 decision Friday, Aug. 21, ruled in favor of Gov. Gretchen Whitmer’s emergency powers.

The Court of Appeals upheld the Court of Claims’ decision three months ago that Whitmer could act through the 1945 Emergency Powers of Governor Act (EPGA) without the Legislature’s approval in response to the COVID-19 pandemic.

Whitmer has used the power to issue over 160 Executive Orders impacting almost 10 million Michiganders, some of which carried the threat of misdemeanor charges and up to 90 days in jail.

Judges Kirsten Frank Kelly and Jane Markey signed onto the majority opinion, penned by Markey. Judge Jonathan Tukel dissented.

The dispute hinges over two laws that authorize emergency powers: The Emergency Management Act (EMA) of 1976 requires the governor to get legislative approval after 28 days, while the EPGA has no such restraint.

Markey wrote the Legislature, through the EPGA, gave the governor “broad power of action.”

“We hold that the governor’s declaration of a state of emergency, her extension of the state of emergency, and her issuance of related executive orders fell within the scope of the governor’s authority under the EPGA,” the court wrote.

The majority ruled the EPGA constitutional and declined to address whether the EMA authorized Whitmer’s actions, calling the matters “moot.”

Republicans had argued the 1945 law only applied to local emergencies.

The court ruled “the plain and unambiguous language” of the two laws didn’t support that argument.

“We find it more than a bit disconcerting that the very governmental body that delegated authority to governors to confront public emergencies – and holds and has held the exclusive power to change it – steps forward 75 years later to now assert that it unconstitutionally delegated unconstrained authority,” the majority wrote in the opinion.

Tukel dissented, citing the EMA, which specifically names “epidemic.” The EPGA doesn’t.

Whitmer’s press secretary Tiffany Brown said in a statement that the “Court of Appeals handed the governor a complete and decisive win in her efforts to protect the people of Michigan from this once-in-a-lifetime global pandemic. This decision recognizes that the Governor’s actions to save lives are lawful and her orders remain in place.”

The fight isn’t over yet.

Whitmer could lose her powers through an appeal to the Michigan Supreme Court or through the Unlock Michigan campaign seeking to repeal the 1945 rule.

House Speaker Lee Chatfield, R-Levering, tweeted Friday that the “The Court of Appeals got it wrong today.”

“Our Constitution is clear, and separation of powers is real,” Chatfield said. “No Governor, Republican or Democrat, can have unilateral control over a state based solely on their judgment. This precedent is extremely dangerous. We will now go to the MSC.”

Unlock Michigan spokesman Fred Wszolek told The Center Square that within five weeks, they have gathered 200,00 signatures out of the 340,047 required to repeal the law.

“The Court of Appeals has made it clear that the only way to add checks and balances in government is for the people to take charge and insist upon it with this petition,” Wszolek said. “COVID is still a problem, but the emergency has ended. What hasn’t ended is the governor’s state of emergency that allows her to rule by decree.

“That’s not the right way to govern. We have to get back to the normal order where elected representatives debate laws, and the public gets input.”

The Mackinac Center for Public Policy also criticized the rule.

“The separation of powers prevents the governor from having unlimited, unilateral and indefinite power,” Patrick Wright, vice president of legal affairs at the Mackinac Center, said in a statement. “Contrary to the Court of Appeals decision, the Legislature cannot pass laws that effectively amend this doctrine, which is established in the Michigan Constitution. The separation of powers doctrine has existed for centuries to enhance liberty, protect freedoms and lead to better policy decisions.”

You can read the official decision at https://content.govdelivery.com/attachments/MIEOG/2020/08/21/file_attachments/1523443/COA%20Ruling.PDF.

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