05 Oct 20
In a landmark ruling with far-reaching implications, the Michigan Supreme Court decided Friday that Gov. Gretchen Whitmer violated her constitutional authority by continuing to issue orders to combat COVID-19 without the approval of state lawmakers.
The order essentially brings an end to Whitmer's ability to use emergency powers without legislative approval, but there are differing takes as to when the practical effect of the ruling would be felt.
Whitmer argued her powers will remain in place for at least 21 days, an apparent reference to a 21-day period in which the governor can request a rehearing from the Michigan Supreme Court.
https://www.detroitnews.com/story/news/local/michigan/2020/10/02/michigan-supreme-court-strikes-down-gretchen-whitmers-emergency-powers/5863340002/
The Michigan Supreme Court determined her emergency powers to be unconstitutional. Does that mean her mandate requiring face masks to be null and void? Why would it take effect 21 days after the ruling? The Michigan Supreme Court's ruling is clear. Is the delay justified?
@metal-brain saidIf you had read the entire article (which you clearly did not) you'd know the answer to your questions.
In a landmark ruling with far-reaching implications, the Michigan Supreme Court decided Friday that Gov. Gretchen Whitmer violated her constitutional authority by continuing to issue orders to combat COVID-19 without the approval of state lawmakers.
The order essentially brings an end to Whitmer's ability to use emergency powers without legislative approval, but there ...[text shortened]... fect 21 days after the ruling? The Michigan Supreme Court's ruling is clear. Is the delay justified?
A) The ruling was an advisory opinion directed to a Federal judge and is thus not binding until he rules in that case - "The ruling, which was requested by a federal judge earlier this year, serves as advice to the federal court and indicates how the court would rule on a suit challenging Whitmer’s emergency powers."
B) "The ruling appears to leave intact orders issued by the Department of Health and Human Services, which have addressed some of the same subject matter contained in Whitmer's executive orders. "
As an aside, it's really annoying when an article about an important case doesn't provide a citation and/or a link to the decision itself.
EDIT: Luckily I found it without too much trouble: https://courts.michigan.gov/Courts/MichiganSupremeCourt/Clerks/Recent%20Opinions/20-21%20Term%20Opinions/In%20re%20Certified%20Questions-OP.pdf
107 pages long though might take a while to wade through it.
05 Oct 20
@no1marauder saidA ruling is advice? I have never heard of that before. I thought rulings from a state supreme court were final.
If you had read the entire article (which you clearly did not) you'd know the answer to your questions.
A) The ruling was an advisory opinion directed to a Federal judge and is thus not binding until he rules in that case - "The ruling, which was requested by a federal judge earlier this year, serves as advice to the federal court and indicates how the court wo ...[text shortened]... %20re%20Certified%20Questions-OP.pdf
107 pages long though might take a while to wade through it.
05 Oct 20
BTW, the title of the thread is wrong; the Michigan Supreme Court found the 1945 Emergency Powers of the Governor Act passed by the Legislature unconstitutional but Whitmer was following the law as written when she made the executive orders. Thus, the ones who violated the Michigan Constitution was the Legislature in 1945 according to the court.
@metal-brain saidIt suffices to read the first two pages to answer that one.
A ruling is advice? I have never heard of that before. I thought rulings from a state supreme court were final.
@metal-brain saidThat's not correct and seems intentionally misleading. The issue wasn't her mandate to combat COVID, it was that she extended her mandate beyond 28 days. That extension is the point of contention, NOT whether she could order it in the first place.
the Michigan Supreme Court decided Friday that Gov. Gretchen Whitmer violated her constitutional authority by continuing to issue orders to combat COVID-19 without the approval of state lawmakers.
https://www.wsj.com/articles/an-end-to-michigans-endless-emergency-11601843838
05 Oct 20
@metal-brain saidSorry you're not familiar with the practice of Federal courts certifying certain questions of State law to the relevant State Courts. https://en.wikipedia.org/wiki/Certified_question
A ruling is advice? I have never heard of that before. I thought rulings from a state supreme court were final.
The ruling from a state Supreme Court is "final" in these cases as it regards interpretation of State law but the Federal court asking the certified question(s) must then apply it to the facts of the case and make a binding Order.
05 Oct 20
1 edit
@vivify saidThat's only half right. There were two statutes in question; the Emergency Management Act of 1976 and the Emergency Powers of the Governor Act of 1945.
That's not correct and seems intentionally misleading. The issue wasn't her mandate to combat COVID, it was that she extended her mandate beyond 28 days. That extension is the point of contention, NOT whether she could order it in the first place.
https://www.wsj.com/articles/an-end-to-michigans-endless-emergency-11601843838
The Court ruled that the first statute did not allow the Governor to reissue emergency orders based on it after 28 days without legislative approval, but because it conceded her actions under the second were in compliance with the law, they had to rule the second statute unconstitutional to get to the desired result.
05 Oct 20
@vivify saidMy quote was correct. Note the word "continuing" in my post. She had no constitutional right to extend it beyond 28 day without legislative approval. That makes her mask mandate unconstitutional at this time, but if the ruling is not final that is why she is claiming she can be a face mask Nazi a little longer.
That's not correct and seems intentionally misleading. The issue wasn't her mandate to combat COVID, it was that she extended her mandate beyond 28 days. That extension is the point of contention, NOT whether she could order it in the first place.
https://www.wsj.com/articles/an-end-to-michigans-endless-emergency-11601843838
05 Oct 20
@no1marauder saidThe article is misleading then. It said this:
BTW, the title of the thread is wrong; the Michigan Supreme Court found the 1945 Emergency Powers of the Governor Act passed by the Legislature unconstitutional but Whitmer was following the law as written when she made the executive orders. Thus, the ones who violated the Michigan Constitution was the Legislature in 1945 according to the court.
"the Michigan Supreme Court decided Friday that Gov. Gretchen Whitmer violated her constitutional authority by continuing to issue orders to combat COVID-19 without the approval of state lawmakers."
The article clearly says Whitmer violated her constitutional authority. If my title thread is wrong it is only because the article is wrong in it's opening paragraph.
05 Oct 20
@metal-brain said(Shrug) Articles regarding legal rulings are often wrong in the popular press.
The article is misleading then. It said this:
"the Michigan Supreme Court decided Friday that Gov. Gretchen Whitmer violated her constitutional authority by continuing to issue orders to combat COVID-19 without the approval of state lawmakers."
The article clearly says Whitmer violated her constitutional authority. If my title thread is wrong it is only because the article is wrong in it's opening paragraph.
Whitmer justified her executive orders under both statutes. The Court found her doing so under the first violated that law (not the Michigan Constitution) after April 30, 2020 because the Legislature did not renew the "state of disaster". However, it found her doing so under the second by declaration of a "state of emergency" to be within the law, but that the law violated the Michigan Constitution.
05 Oct 20
@no1marauder saidI shouldn't have called it an "advisory opinion"; it is a binding statement of Michigan law. Still, it's not self-executing and a court has to issue some Order directly forbidding enforcement of the executive orders pursuant to a pending case.
If you had read the entire article (which you clearly did not) you'd know the answer to your questions.
A) The ruling was an advisory opinion directed to a Federal judge and is thus not binding until he rules in that case - "The ruling, which was requested by a federal judge earlier this year, serves as advice to the federal court and indicates how the court wo ...[text shortened]... %20re%20Certified%20Questions-OP.pdf
107 pages long though might take a while to wade through it.
05 Oct 20
@no1marauder saidOkay, but that just brings up an obvious question. If the law violated the constitution how did it get passed to become an unconstitutional law?
(Shrug) Articles regarding legal rulings are often wrong in the popular press.
Whitmer justified her executive orders under both statutes. The Court found her doing so under the first violated that law (not the Michigan Constitution) after April 30, 2020 because the Legislature did not renew the "state of disaster". However, it found her doing so under the second by ...[text shortened]... of a "state of emergency" to be within the law, but that the law violated the Michigan Constitution.
Don't lawyers read bills and catch these things before they get passed? Seems like a major screw up to me.
@metal-brain saidActually a more interesting question is why the Michigan Supreme Court waited 75 years to declare the law unconstitutional and do so by a partisan 4-3 vote.
Okay, but that just brings up an obvious question. If the law violated the constitution how did it get passed to become an unconstitutional law?
Don't lawyers read bills and catch these things before they get passed? Seems like a major screw up to me.
The majority espoused a "nondelegation" principle rarely successful in litigation. If and when the Court retains a non-right wing majority (which could be as soon as next month; the author of the decision is retiring and an election is being held for two seats on the Court) I suspect this ruling will be overturned if a proper case comes along.
EDIT: The Michigan Court of Appeals had upheld the same act on August 21, 2020: http://publicdocs.courts.mi.gov/OPINIONS/FINAL/COA/20200821_C353655_122_353655.OPN.PDF
05 Oct 20
@no1marauder saidWhitmer was probably the only Governor that overstepped her emergency powers since then. People often do not notice things until it becomes an issue. The law should never have been passed though. That is when people should notice.
Actually a more interesting question is why the Michigan Supreme Court waited 75 years to declare the law unconstitutional and do so by a partisan 4-3 vote.
The majority espoused a "nondelegation" principle rarely successful in litigation. If and when the Court retains a non-right wing majority (which could be as soon as next month; the author of the decision is retiri ...[text shortened]... d for two seats on the Court) I suspect this ruling will be overturned if a proper case comes along.