(Mlive) – A state Court of Claims judge ruled Tuesday the emergency laws under which Gov. Gretchen Whitmer has issued dozens of executive orders in response to the coronavirus pandemic are likely constitutional.
Whitmer is facing a number of challenges over emergency mandates she’s issued without approval of the state House of Representatives or Senate.
Michigan United for Liberty, the group that has organized protests against the governor and her stay home orders at the Capitol, sued Whitmer in the Court of Claims on April 21, challenging the constitutionality of the Emergency Management Act of 1976 and the Emergency Powers of the Governor Act of 1945, the same laws at the center of the legislature’s lawsuit.
The Republican-led legislature also sued Whitmer in the state Court of Claims on May 6 after she extended the state of emergency without a vote of support.
Michigan United for Liberty, through attorney Philip Ellison’s Hemlock-based Outside Legal Counsel law firm, asked the Court of Claims to declare the emergency laws and the governor’s orders unconstitutional. The group also asked that Whitmer be barred from issuing further emergency orders.
“Under the Michigan Constitution, ‘no person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided by the Constitution’” the law firm said. “The Michigan Constitution does not provide the governor emergency powers generally or (as) a pandemic exception to the separation of powers.”
Court of Claims Judge Michael J. Kelly on Tuesday disagreed and denied Michigan United for Liberty’s request.
In evaluating the laws, the court “must remain cognizant that the situation sought to be controlled … is an unpredictable, dangerous emergency or disaster situation,” Kelly wrote. “A disaster or emergency is almost assuredly a dynamic, unpredictable situation fraught with complexity.
“It is unreasonable to expect a demanding or precise set of legislative standards be incorporated into … such a demanding scenario.”
While Kelly acknowledged the laws grant “broad” authority to the governor, he said it doesn’t include the “uncontrolled, arbitrary power” the U.S. Supreme Court has cautioned against.