Nearly seven months after Gov. Gretchen Whitmer issued her first executive order aimed at battling the COVID-19 pandemic in March, the Michigan Supreme Court ruled on Oct. 2 that Whitmer “had no authority to issue or renew executive orders relating to Covid-19 beyond April 30,” according to CNN. The 4-3 ruling, which Whitmer said in a statement she “vehemently disagrees” with, effectively strips away all of the governor’s powers to unilaterally issue executive orders aimed at containing COVID-19. The court, however, notes that the decision “leaves open many avenues for the Governor and Legislature to work together to address this challenge.”
Since the first cases of COVID-19 were confirmed in Michigan on March 10 — one in Oakland County and another in Wayne County — Whitmer has worked under a state of emergency and issued a wide variety of executive orders to curb the impacts of the pandemic. However, some argued that she had no authority to continue issuing orders without the consent of the Michigan State Legislature after April 30, the date her initial emergency declaration expired. Until the court struck down Whitmer’s emergency powers, the governor relied on two laws, one from 1945 and the other from 1976, to issue executive orders unilaterally. Now, under the Michigan Supreme Court’s recent decision, Whitmer can invoke neither law to extend a state of emergency or issue further orders without working with the legislature.
The Michigan Supreme Court’s ruling delivers a major blow to the emergency powers Whitmer has wielded in order to control the spread of COVID-19 across the state. The governor stated that, “Right now, every state and the federal government have some form of declared emergency. With this decision, Michigan will become the sole outlier at a time when the Upper Peninsula is experiencing rates of COVID-19 infection not seen in our state since April.” While some fear that the decision will lead to an uptick in cases across the state as the governor loses her authority, others — including State Senate Majority Leader Mike Shirkey, R-Clarklake — celebrated the ruling.
On the whole, Whitmer has expertly navigated the unprecedented crisis, and her decisive actions deserve praise. Although the governor’s orders have been met with criticism, a poll released in May found that nearly 64% of Michiganders approve of Whitmer’s handling of the crisis. But at the same time, many people have expressed great concern about the governor’s far-reaching powers to single-handedly issue executive orders that impact the entire state population of 10 million people. While Whitmer has acted with the best interests of Michiganders in mind, it is not prudent by any stretch of the imagination to allow one person, regardless of the circumstances, to hold so much power. Ultimately, while the people of Michigan elected Whitmer as governor in 2018, she heads one of three branches that govern our state. Even though we continue to find ourselves in the middle of a dangerous public health crisis, Michiganders didn’t just elect Whitmer; they also elected representatives to the State House of Representatives and State Senate, who have been largely excluded from exercising their power and collaborating with Whitmer on executive orders.
Regardless of the circumstances — no matter how dire the emergency is — we cannot allow one leader to unilaterally make sweeping executive orders. It is the responsibility of the governor to work with the representatives of the state legislature to protect the health of our state. Meanwhile, it is the responsibility of Michigan’s elected representatives to put checks and limits on Whitmer’s powers as they deem necessary. It doesn’t matter what kind of crisis our state is confronting, and it doesn’t matter whether the people of Michigan have elected a Republican, Democrat or Independent; ultimately, it is dangerous to disproportionately allocate any amount of power to a single branch of government.
Throughout the course of Whitmer’s free rein, the people of Michigan learned firsthand the perils of vesting so much political power in the office of the governor. Although most of Whitmer’s actions were justifiable and protected Michiganders from contracting COVID-19, there were undoubtedly a handful that needed improvement. However, with Michigan’s legislators being shut out of the process, our governor had total discretion to issue arbitrary executive actions, even if they had significant costs; nobody had the political means to influence her executive orders and strike down certain aspects that were problematic. For instance, Whitmer got flak nationwide for her order barring the sale of certain products in retail stores like seeds, home gardening supplies and paint. As the Detroit Free Press noted, this order strangely permitted purchases of lottery tickets in stores at the same time, which the state uses to fund certain programs.
Beyond ordering stores to block off certain sections that sold goods deemed “non-essential,” Whitmer kept Michiganders under one of the longest-running stay-at-home orders in the nation, even amid the obvious economic carnage of such moves that our state is still reeling from today. In Oakland County alone, the state’s second-largest county, the University of Michigan Research Seminar in Quantitative Economics found that a quarter of small businesses were lost, along with nearly 160,000 jobs. Finally, even throughout the summer months, as Michigan experienced low numbers of new cases as well as a small test-positivity rate, Whitmer prohibited businesses like gyms and movie theaters from reopening. As a result, many business owners who have invested their whole lives in these industries have teetered on the edge of collapse for reasons with little support from a public health standpoint. Right here in the heart of Ann Arbor, according to the Daily, the Michigan Theater and State Theater recorded financial losses of $1.5 million, forced to keep their doors closed well into the fall as other businesses across the state like hair salons opened in June. Another theater owner in the state, according to the Holland Sentinel, said “revenue has been down about 95 percent since the coronavirus pandemic shutdown began in mid-March.”
These losses are staggering and could have been averted if Whitmer couldn’t unilaterally keep the economy closed. If the Michigan State House and Senate had a say, we could have combated the pandemic just as successfully while also supporting the hard-working people of Michigan. In the midst of this deadly pandemic, it is inconceivable why we suddenly abandoned our American principles of checks and balances and opted to allow one leader to navigate this viral storm. In Michigan — along with our federal government in Washington, D.C. — we all know our government is based on checks and balances and the separation of powers. These checks on emergency powers don’t become irrelevant in the middle of a public health crisis like the COVID-19 pandemic, as some have argued; on the contrary, they are more important in order to prevent abuses of power. On the international stage, experts have argued that the exponential spread COVID-19 opens the door for world leaders to “tighten their grip on power.”
There is no evidence Whitmer has abused her powers. She has handled the crisis with one goal: to protect the state of Michigan. However, it is exceedingly evident that her steady refusal (until now) to work with our legislators has cost our state. In the wise words of Montesquieu, as the Michigan Supreme Court noted in its decision, “When the legislative and executive powers are united in the same person…there can be no liberty.”
As the pandemic continues to rage on, accelerating as the weather cools down and we approach the end of the calendar year, we need to rethink our approach to mitigating this crisis here in Michigan, and ensure that all branches of government have a say in the next steps forward. I applaud Michigan’s high court for taking this action, and I look forward to Gov. Whitmer, our elected state representatives and other government bodies working collectively to protect our state.
Evan Stern can be reached at erstern@umich.edu.
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