On Friday, October 2, 2020, the Michigan Supreme Court filed an opinion (the "Opinion") that limits Governor Whitmer’s constitutional authority to issue or re-issue executive orders in response to the COVID-19 pandemic (the "Executive Orders").

Further, on October 5, Governor Whitmer filed a motion with the Michigan Supreme Court requesting clarification that the Opinion will not take effect until October 30, 2020. While the Opinion's ultimate outcome is yet to be seen, it is almost certain the ruling will create near-term volatility and a murky operating environment for businesses across the state, as the Governor has indicated her intent to re-issue the substance of her Executive Orders under alternative laws or through administrative rules. Further, in the wake of the Opinion, local governments and health departments have begun to issue their own directives. 

To parse the meaning of the Opinion, and its consequences, we have set forth what we believe to be three of the immediate takeaways from Friday's ruling.

1. The Opinion Answers a Narrow Question with Broad Consequences.

The Opinion was issued by the Michigan Supreme Court in response to certified questions it received from the United States District Court for the Western District of Michigan (the "Federal Court"). Such questions arose in the context of a case the Federal Court is adjudicating, which seeks to determine whether a previous Executive Order restricting the ability of medical professionals to perform elective medical procedures is valid under the Michigan constitution. Before making a determination in that case, the Federal Court requested guidance from the Michigan Supreme Court on whether the Governor has the power that she has asserted to issue Executive Orders. Specifically, the Federal Court requested the Michigan Supreme Court’s opinions on the following certified questions:

• Whether, under the Emergency Powers of the Governor Act of 1945, or the Emergency Management Act of 1976, Governor Whitmer has the authority after April 30, 2020 to issue or renew any executive orders related to the COVID-19 pandemic; and

• Whether the Emergency Powers of the Governor Act of 1945 and/or the Emergency Management Act of 1976 violates the Separation of Powers and/or the Non-Delegation Clauses of the Michigan Constitution.

The Opinion then responded to these questions by ruling (a) the Governor did not have authority after April 30, 2020 to issue or renew executive orders related to the pandemic, and (b) the Emergency Powers of the Governor Act of 1945 unlawfully delegates legislative power to the executive branch, in direct violation of the Michigan Constitution.

2. Existing Executive Orders to be Re-Packaged Under Separate Authority.

The Michigan Supreme Court has therefore restricted the Governor's powers, and the Attorney General has already stated her office will no longer enforce the Executive Orders by criminal prosecution. In its Opinion, the court invited the Governor and the Legislature to work together to address the challenges of the COVID-19 pandemic.

The Governor has indicated that the contents of some of the Executive Orders will be re-issued under the Michigan Health Code, which permits the Director of the Department of Health and Human Services (DHHS) to issue orders during an on-going pandemic. The scope of the Director's authority is more limited than the powers asserted by the Governor. Additionally, local health departments retain their authority to ensure the public health is protected, and as such, local health departments will likely issue directives to protect the public in their jurisdictions. Therefore, while the Governor's powers have been restricted, some aspects of the Executive Orders will likely remain in place.

3. Michigan Businesses Should be Mindful of Existing Executive Orders In the Near Term and Prepare Operations With a Risk-Adjusted Approach.

Michigan businesses may rightfully begin asking questions regarding the Opinion's effect on their operations. In brief, we do not believe drastic operational changes should be implemented until the dust settles. In the coming days, we are likely to see new orders from the DHHS and/or local governments and health departments. Whether those orders are valid will depend on their contents as compared to statutory authority. It is also important to note that Michigan Occupational Safety & Health Administrative rules and regulations must be adhered to, and employers must continue to provide safe working environments for their employees. To date, no affirmative liability protections have been enacted in Michigan.