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<\/p>\nEthan Yang
\nAmerican Institute for Economic Research<\/p>\n
<\/p>\n
On October 3rd\u00a0NPR<\/a>\u00a0reported that the Michigan Supreme Court struck down Governor Gretchen Whitmer\u2019s state of emergency and the powers it granted. NPR writes<\/p>\n In\u00a0a 4-3 majority opinion<\/a>, the state\u2019s high court said she did not have that authority. \u201cWe conclude that the Governor lacked the authority to declare a \u2018state of emergency\u2019 or a \u2018state of disaster\u2019 under the EMA after April 30, 2020, on the basis of the COVID-19 pandemic. Furthermore, we conclude that the EPGA is in violation of the Constitution of our state because it purports to delegate to the executive branch the legislative powers of state government\u2013 including its plenary police powers\u2013 and to allow the exercise of such powers indefinitely,\u201d wrote Justice Stephen J. Markman on behalf of the majority.<\/p><\/blockquote>\n Governor Whitmer has been one of the more heavy-handed executive figures during the pandemic. One of her policies went as far as to\u00a0ban the selling of gardening supplies<\/a>\u00a0in stores that were still permitted to stay open.<\/p>\n More importantly, however, this court ruling was not the first of its kind but the third in a series of legal victories against lockdown orders. The first was a\u00a0Wisconsin Supreme Court ruling<\/a>\u00a0that declared parts of Governor Tony Evers\u2019 stay at home order unconstitutional and the second was by a federal court that struck down Governor Tom Wolf\u2019s policies in\u00a0Pennsylvania<\/a>.<\/p>\n There is no doubt that the governors across the country have gone off the constitutional deep end in response to Covid-19, exercising powers that are not only unprecedented but unproven. These cases, notably in Michigan and Wisconsin, all share some important legal themes that may suggest the beginning of a constitutional reckoning for governors across America.<\/p>\n Back in March, Governor Whitmer declared a state of emergency in response to the pandemic, much like many others across the country. Unlike many other governors, hers was particularly strict and arbitrary. The\u00a0Mackinac Center Legal Foundation<\/a>, an organization that represented a number of healthcare firms in a suit against the state write,<\/p>\n \u201cOne of the affected medical practices, Grand Health Partners, operates in the Grand Rapids area. It performs endoscopies and other elective surgeries, many of which were deemed nonessential by executive order. Due to the shutdown, many of their patients were not able to receive treatment and have suffered because of it.\u201d<\/p><\/blockquote>\n This is one of the many unintended consequences that come with policies such as stay at home orders and deeming certain businesses \u201cnonessential.\u201d Interestingly, this had little to do with the Michigan Supreme Court\u2019s ruling. Such claims would be justified under the equal protection clause guaranteed by the\u00a014th Amendment<\/a>. However, the court decided to take a different route.<\/p>\n The court ruled that the governor lacked the very authority to continue her state of emergency. The Michigan legislature authorized the governor to declare a state of emergency in March but only until April 30. Governor Whitmer decided to invoke the Emergency Powers of the Governor Act (EPGA) of 1945 as well as the Emergency Management Act of 1976 to grant herself virtually unlimited power. This unilateral and unauthorized exercise of power without legislative oversight was what the court deemed unconstitutional.<\/p>\n The court not only struck down the governor\u2019s emergency powers but it also declared the EPGA unconstitutional, albeit with a narrow margin. Record Eagle\u00a0writes<\/a><\/p>\n \u201cAlthough the constitutionality of the \u201945 law produced a split ruling, the justices unanimously agreed that any orders past April 30 without input from the Legislature were not valid.\u201d<\/p><\/blockquote>\n Such a ruling is an absolutely necessary check on the powers of the executive branch by the judicial branch. The Michigan governor was essentially acting in contempt of the democratically elected legislature which did not grant her the power to continue her policies for as long as she did. Record Eagle\u00a0writes<\/a>,<\/p>\n \u00a0\u201cOur Constitution matters, and this was a big win for our democratic process,\u201d said Republican House Speaker Lee Chatfield of Emmet County.<\/p>\n In a footnote to his opinion, Markman offered an optimistic message.<\/p>\n \u201cOur decision leaves open many avenues for the governor and Legislature to work together to address this challenge and we hope that this will take place,\u201d he said.<\/p><\/blockquote>\n The ruling in Wisconsin was one of if not the first that challenged lockdown orders enacted by state governors. Way back in May, the Milwaukee Journal Sentinel\u00a0reported<\/a>\u00a0that<\/p>\n \u201cThe Wisconsin Supreme Court has struck down Gov. Tony Evers\u2019 order shutting down daily life to limit the spread of coronavirus \u2014 marking the first time a statewide order of its kind has been knocked down by a court of last resort.\u201d<\/p><\/blockquote>\n The court took an angle similar to the Michigan Supreme Court in striking down parts of Wisconsin\u2019s stay at home order because it was made without any legislative oversight. That is that lawmakers in the Wisconsin State Assembly did not grant the governor or his bureaucratic officers the power to enact lockdown policies.<\/p>\n The Pacific Legal Foundation\u00a0writes\u00a0<\/a><\/p>\n \u201cThe Wisconsin Supreme Court\u2019s decision should be seen as a victory for the principle that even in a crisis, the rulemakers must follow the rules. Regardless of how anyone feels about the orders themselves, if the governor and Health Secretary had worked with the legislature as they\u2019re required to\u2014even during crises\u2014they could have crafted a constitutional law that the State Supreme Court likely would have upheld.\u201d<\/p><\/blockquote>\n They also explain that<\/p>\n \u201cThe Wisconsin Governor issued an order granting Department of Health Services Secretary-designee Andrea Palm nearly limitless power to respond to the crisis without any form of accountability. Even though Palm is not elected by the people and has not yet been confirmed by the state legislature, she was authorized to issue orders to shut down broad swaths of the state\u2019s economy. And Palm\u2019s orders could continue indefinitely without being subjected to public scrutiny. In other words, Palm\u2019s authority violated key safeguards put in place to ensure that rulemakers remain accountable.\u201d<\/p><\/blockquote>\n The governor and his public health officials acted without the democratic consent of the people via their elected representatives in the legislature. Unilateral and quite frankly, rogue, actions such as this are a clear violation of the separation of powers doctrine that the Founders put in place to prevent tyranny.<\/p>\n AIER has already covered how a federal court held that Pennsylvania\u2019s lockdown orders were unconstitutional in an article by\u00a0Stacy Rudin<\/a>. However, it is worth reiterating again because it is certainly an important case that differs from the rulings in Michigan and Wisconsin. Rudin gives some important context when she writes,<\/p>\n \u201cPennsylvania Federal Court in\u00a0Butler County v. Wolf\u00a0<\/em><\/a>reviewed the indefinite \u201cemergency\u201d restrictions imposed by the executive branch of Pennsylvania government, declaring limitations on gathering size, \u201cstay-at-home orders,\u201d and mandatory business closures unconstitutional. Refusing to accept the alleged need for a \u201cnew normal,\u201d the Court stated that an \u201cindependent judiciary [is needed] to serve as a check on the exercise of emergency government power.\u201d<\/p><\/blockquote>\n About time. The Judicial Branch is coming to save us.\u201d<\/p><\/blockquote>\n Pennsylvania implemented many of the lockdown measures that we see in the most draconian states such as stay at home orders and business closures. However, unlike Michigan and Wisconsin, Governor Wolf\u2019s policies were struck down by a federal court, not a state court. Furthermore, the ruling was based not on a separation of powers argument but violations of the 1st and 14th Amendments, making it more of an individual rights case.<\/p>\n A reporter\u00a0writes<\/a><\/p>\n The declaratory judgment says \u201c(1) that the congregate gathering limits imposed by defendants\u2019 mitigation orders violate the right of assembly enshrined in the First Amendment; (2) that the stay-at-home and business closure components of defendants\u2019 orders violate the due process clause of the Fourteenth Amendment; and (3) that the business closure components of defendants\u2019 orders violate the Equal Protection Clause of the Fourteenth Amendment.\u201d<\/p><\/blockquote>\n Another key component to the ruling was the fact that such orders were not narrowly tailored, which is a key criterion for any policy that intends to restrict individual rights.<\/p>\nThe Story in Michigan\u00a0<\/strong><\/h3>\n
The Case of Wisconsin<\/h3>\n
The Case of Pennsylvania<\/h3>\n