How Do Emergency Powers Work Under Michigan Law?

by | Jun 2, 2020 | Civil Rights | 0 comments

As Michigan got closer to lifting its mandatory Stay At Home order, a political battle erupted when state lawmakers filed a lawsuit challenging Gov. Gretchen Whitmer’s use of emergency powers during the coronavirus pandemic.

The lawsuit asked the courts to declare the governor’s Stay at Home order invalid on the grounds that the governor didn’t have that kind of statutory authority under the Michigan Constitution. However, both the governor and the lawmakers have defended their positions by citing two Michigan laws that dictate what the governor can and can’t do during emergency situations.

The COVID-19 pandemic created a unique health crisis that hasn’t been seen in the United States in more than 100 years, and there’s not much precedent for how to handle it. But Michigan isn’t the only state where lawmakers and the governor have disagreed over how gubernatorial powers can be used in an emergency. Legal experts think this debate is likely to continue long after the Stay At Home orders have been lifted and life starts to return to normal. 

The use of Stay At Home orders have also raised questions about what the penalties are for violating social distancing rules. If you’ve been charged with any violation of the Stay At Home orders in Michigan, it’s in your best interest to contact a civil rights attorney to review your case.

Why are Michigan Lawmakers Suing Over the Stay At Home Order?

To slow the spread of the COVID-19 coronavirus, Gov. Whitmer invoked emergency powers over state residents that included:

  • Practicing social distancing measures
  • Banning large gatherings
  • Closing public school buildings
  • Closing non-essential businesses
  • and issuing the statewide stay-at-home order.

The order angered some residents and led to protests outside the state capital. Lawmakers challenged Whitmer’s decision as an unprecedented use of executive power. The lawsuit was filed in the Michigan Court of Claims asserting that only the Legislature can authorize those kinds of emergency powers. 

State lawmakers have asked the Michigan Court of Claims for an immediate ruling declaring that Whitmer’s emergency orders, including her stay-at-home and business closures, were “invalid and unenforceable” because the Legislature didn’t extend her emergency authority.

However, some legal experts believe lawmakers won’t succeed in this court challenge. They’ve pointed to the Emergency Powers of Governor Act of 1945, a law that sets no time limit on a state of emergency and has no provisions requiring a review by the legislative.

Gov. Whitmer invoked not only that law, but also The Emergency Management Act of 1976. That law sets a 28-day time limit on a state of emergency before legislative approval is required.

What Does Michigan Law Say About Actions During an Emergency?

The lawmakers filing the lawsuit argue that the 1945 law only applies to local emergencies, not a statewide one and that the 1976 law requires legislative approval after 28 days. The governor’s stay at home order went into effect on March 24.

Legal experts disagree and say the 1945 law doesn’t explicitly limit the governor’s authority to just local emergencies. That law states:

“During times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state … the governor may proclaim a state of emergency and designate the area involved. After making the proclamation or declaration, the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control.” 

The 1945 law was enacted in response to race riots in Detroit in 1943. It authorizes the governor to declare a state of emergency and exercise certain powers that include:

  • Controlling traffic
  • Establishing a curfew
  • Prohibiting occupancy in public buildings
  • Controlling the sale of dangerous liquids or explosives.

The law made violations of these orders a misdemeanor offense.

The 1976 law was created for the planning, response, and recovery from natural and human-made disasters, granting the governor temporary powers to suspend regulatory rules and force evacuations.

The Court of Claims hasn’t ruled yet on the lawsuit, although the Michigan Supreme Court did refuse to take up the case, saying it should follow the normal appeal route to the Michigan Court of Appeals first.

The governor’s Stay At Home order has been lifted and businesses are being allowed to reopen in phases.

Experienced Civil Rights Attorneys are Here to Help

Your rights are important to us. During these unprecedented times, if you’re facing any kind of criminal charge and are worried about how your case will be handled during the COVID-19 crisis, contact the attorneys at the Michigan Legal Center. We’re here to defend the residents of Michigan.

The attorneys at the Michigan Legal Center are happy to answer any questions you may have and offer advice on what you need to do following an arrest, including for violations of the Stay At Home order and social distancing rules. Call 1-800-961-8447 for your free consultation.

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