On Oct. 2, the Michigan Supreme Court struck down Public Act 302 of 1945, a statute under which Governor Gretchen Whitmer has issued numerous executive orders this year to curb the spread of COVID-19. The court’s decision is likely to have widespread ramifications, and has raised many legal questions surrounding the numerous executive orders Whitmer has enacted since the start of the pandemic.
The Michigan Supreme Court ruled 4-3 that Public Act 302 constituted an unconstitutional delegation of legislative authority. Therefore, the Governor could not issue orders without the approval of state lawmakers after April 30 (which is when the state legislature’s extension of the emergency expired). The Governor has issued nearly 200 executive orders since the beginning of the year, the majority of which were meant to slow the spread of COVID-19. Questions now surround which previously issued executive orders are voided.
Michigan Attorney General Dana Nessel stated on Oct. 3 that her office will no longer enforce executive orders in light of the Supreme Court ruling. However, her decision is not binding on other law enforcement agencies with independent enforcement authority.
What does this mean for business owners?
Whitmer told the media that her orders retain the full force of the law for at least 21 days after the ruling, due to procedural rules governing the finality of the Supreme Court’s opinion. And on Oct. 5, Whitmer and Robert Gordon, Director of the Michigan Department of Health and Human Services (MDHHS), requested that the Supreme Court clarify its Oct. 2 ruling to provide that it does not take effect until Oct. 30, arguing that critical measures meant to prevent the spread of COVID-19 and to help the public would otherwise lapse. According to Whitmer, a transition period allows the governor, local health departments, and the legislature time to work together to put protections in place.
The legal issues continue to evolve daily. However, on Oct. 5, the MDHHS issued its own emergency order that enacts a number of the Governor’s regulations, including limitations on gatherings, face covering requirements, restrictions on food service establishments, and requirements for organized sports. As the MDHHS continues to consider and issue new orders, business owners may be best served to err on the side of caution and maintain the policies and procedures they enacted under the Governor’s orders to ensure against potential violations of the MDHHS orders, which may be enforced as misdemeanor violations and with civil fines.
Help is available
The attorneys at O’Reilly Rancilio are available to answer your questions regarding the legal issues surrounding the COVID-19 pandemic. For more information please visit our website or call 586-726-1000.