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Michigan Supreme Court hears arguments against Gov. Whitmer's emergency powers

Updated  September 10, 2020 1:14am EDT
Coronavirus in Michigan
FOX 2 Detroit

LANSING, Mich. (FOX 2) - The Michigan Supreme Court is expected to weigh in on a legal challenge to Gov. Gretchen Whitmer's use of emergency powers during the COVID-19 pandemic after hearing arguments challenging her authority Wednesday. 

Despite the Republican-led lawsuit, the governor says the emergency declaration and the extension are still necessary. The emergency declaration has been extended several times already and is currently set to expire on October 1, 2020.

Oral arguments heard over Gov. Whitmer’s use of emergency powers during COVID-19

The Michigan Supreme Court began hearing oral arguments Wednesday over Gov. Whitmer's use of emergency powers during the COVID-19 pandemic.

Under Whitmer's emergency powers, she's issued more than 170 executive orders that pertain to the coronavirus. While most have been uncontested, some have stirred up controversy as the stay-home order earlier in the year forced businesses closed and people in their homes.

While the GOP legislature okayed the first series of declarations, they declined to approve others past April 30 as the COVID-19 response dragged on. Whitmer ignored their decision, arguing she had the authority to do so under the 1945 Emergency Powers of the Governor Act. Republicans are arguing the 1976 Emergency Management Act requires legislative approval to extend an emergency or disaster after 28 days.

So far, lower courts at the circuit and appeals level have ruled in favor of the governor. It's not certain how quickly the Michigan Supreme Court will weigh in. 

"Isn't it problematic that when talks about orders governor can issue, it gives a non-exclusive list? It says, including but not limited to?" Michigan Supreme Court Justice David Viviano weighed in during the oral arguments that took place virtually on Wednesday. "She's driven sort of a MAC truck through that non-exhaustive list to include any sorts of regulation of private activity of our 10 million citizens," he said. 

But the lawsuit argues whether Governor Whitmer should be allowed to extend this authority without the green light of state lawmakers. Lawyers for the governor argue that she does not make her decisions without the guidance of others. 

"The governor just isn't sitting somewhere and making decisions willy-nilly," argued Ann Sherman, the Asst. Solicitor General. "She's making them based on real-time data. She oversees state agencies that employ doctors, scientists, epidemiologists."

Governor Whitmer has issued nearly 200 executive orders this year.

"When you draft these kind of laws and there's no oversight, sometimes what can happen is that people don't always think through the ramifications," said Justice Richard Bernstein.

FOX 2 reached out to the governor's office and are waiting for a response but Wednesday morning she had this to say on FOX 2 Wednesday morning about fighting COVID 19: "We've come a long ways in Michigan. What we don't want to do is have backsliding where we have to think about closing some things down again and people are losing their lives."