People of Michigan vs Governor Gretchen Whitmer

“The Michigan Legislature seeks¹ to defend Michigan’s constitutional system and the legislature’s role as the sole lawmaking body in that system. Defendant, the head of the executive branch, has the power to execute Michigan’s laws, not usurp them.”

During this pandemic from the Chinese virus, most (not all) states have been in some form of lock down or stay in place orders. For whatever reasons, many states went straight to the model adopted by China and implemented their own non-pharmaceutical interventions. Because China kept vital information from the rest of the world, by the time the pandemic was upon us too little was known about the virus. During those first few months of uncertainty an overabundance of caution may be understandable.

That was then, this is now. As the data regarding the virus continues to come in and as signals are filtered out from noise, this same overabundance of caution has now begun to look like a remarkably reckless move. The continued demand of stay in place lock downs has nothing to do with the original stated purposes for them while harm caused by the lock downs continue to rise as the harm caused by the virus begins to ebb. Many governors have issued eyebrow raising executive orders and of those, Gretchen Whitmer has become quite visible.

On February 28^th of this year, Governor Gretchen Whitmer formed an emergency response team to deal with the oncoming pandemic. By March 10^th (an election day), after confirming the states first two cases, Governor Whitmer declared a state of emergency. March 13^th, Whitmer announced the closure of all public schools K-12. Crowds exceeding 250 were also banned. On the 16^th of March she issued an executive order mandating the closure of bars, restaurants, gyms with cafes and coffeehouses as well as banning crowds of 50 or more.

On the 20^th of March and amid rumors of a lock down, Governor Whitmer denied this saying “we’re not there yet.” The following day she closed all hair salons. On the 23^rd of March she issued a statewide stay at home executive order for all “non-essential” workers and businesses. Following a spike in the death toll that rose to 959 people, the governor issued an executive order extending her stay in place orders until at least the end of April. By the 13^th of April she announced that cases were starting to flatten in the southeast area of Michigan.

April 24^th, the governor extends her stay at home order to May 15^th.

“In response to the ongoing COVID-19 pandemic, Defendant Gretchen Whitmer has asserted vast executive branch power to implement sweeping orders. Expressly and publicly refusing to collaborate with the Legislature, Defendant has unilaterally crafted and implemented public policies governing almost every aspect of life in Michigan. These include restrictions on how every person in Michigan may work, go to school, worship, exercise legal rights, socialize and live hour by hour.”

While Governor Whitmer denies she banned seeds and gardening supplies, her Executive Order 2020-42 does demand stores with more than 50,000 square feet “[c]lose areas of the store – by cordoning them off, placing signs in aisles, posting prominent signs, removing goods from shelves, or other appropriate means – that are dedicated to the following classes of goods…” What follows is a list of four classes of goods placed under this order. Gardening centers and plant nurseries was third on the list.

In an age of presumptuous “fact checkers” several outlets, including USA Today and Politifact label the obvious fact that the governor of Michigan did in fact and in essence ban gardening supplies from being sold by stores with 50,000 square feet or more as being false. While there may be legitimate dispute on whether Michigan’s governor banned gardening supplies outright, there is undoubtedly a dispute between the people and the state legislature over whether any governor of Michigan possesses the sweeping power Gretchen Whitmer claims.

“In asserting these powers, the Defendant has ignored the State Constitution and relied on erroneous readings of certain emergency management laws…The Governor is wrong to do so.”

The Emergency Powers of Governor Act of 1945 (EPGA: Act 302) and the Emergency Management Act of 1976 (EMA: Act 390) are the statutes at issue. Although it seemed as if the legislature was making as applied challenges, the judge ruled against them and seems to be holding they failed to make such challenges. What is strange about Judge Stevens ruling is that in a video of the trial, the judge asks Micheal Williams, the attorney for the plaintiff’s a question about “as applied” challenge. Williams answers: “Yes your honor, and your honor’s characterization is exactly right. So we’re not suggesting that EPGA is entirely unconstitutional.”

The importance of William’s response is that it speaks to the courts test of statutory challenges. Facial challenges are generally understood to be legal challenges to the statute, or in this case executive orders are unconstitutional in every circumstance. Contrast to that to as-applied challenges where the application of the statute has injured someone. As applied only challenges the application of the statue and only when it is peculiar to the plaintiff’s circumstance. This is presumably why Williams answered as he did.

Later, in response to the defendant’s attorney Chris Allen, Williams again stresses that the Legislature is making an as applied challenge, not a facial challenge, to their own emergency powers act. Allen had been insisting the whole time the legislature was declaring their own act unconstitutional. In attempting to explain this, Judge Stevens interrupts and speaks to the fact that he’s on the one hand making an as applied challenge to the emergency powers acts but making facial challenges to the Governor’s executive orders seemed to somehow violate some mysterious legal doctrine.

Williams demurred by apologizing for his sloppy language which only seemed to confuse the matter more. Confused enough are you? Worry not, plenty of lawyers and law professors are confused on the matter too. “Nevertheless, some of the most basic details regarding the characteristics of the facial and as applied challenges categories and, in particular, how the preference for as applied challenges actually operates, remains surprisingly unclear.”

Of the many questions that arise from this uncertainty, for this case the most relevant is this: “Is the choice between a facial and as-applied challenge one the litigant makes when she brings her claim, or is it one the court makes when it addresses her claim?” Regarding the Michigan Legislature’s law suit, it appears as if both neither and…well, the judge decided.

https://www.courthousenews.com/wp-content/uploads/2020/05/Michigan.Lege_.pdf