After high court decision, Michigan AG will not enforce COVID orders

Attorney General Dana Nessel will no longer enforce Gov. Gretchen Whitmer’s executive orders after the Michigan Supreme Court ruled Friday that one of the laws underpinning the orders was unconstitutional. 

Nessel’s decision comes as Whitmer’s team has argued that her orders would stay in effect for 21 days after the ruling, a reference to a 21-day period in which parties can ask for reconsideration. 

But opponents have said the 21-day rule doesn’t apply to rulings issued in response to a federal certified question as was the case in Friday’s Supreme Court decision. 

Further, the language of the order, clearly calling all orders issued after April 30 to be unconstitutional seems to support immediate effect.

Nessel’s office on Sunday made clear the department “will no longer enforce the governor’s executive orders through criminal prosecution.”

“However, her decision is not binding on other law enforcement agencies or state departments with independent enforcement authority,” said Ryan Jarvi, a spokesman for Nessel’s office. 

“It’s her fervent hope that people continue to abide by the measures that Gov. Whitmer put in place — like wearing face masks, adhering to social distancing requirements and staying home when sick — since they’ve proven effective at saving lives,” he said. 

Jarvi credited the governor’s actions with saving lives and counseled residents to follow the measures voluntarily.

The Michigan Chiefs of Police Association told The Detroit News Saturday that departments across the state were waiting for word from Nessel as to when the current executive orders would expire.

“If the attorney general says it’s over, then it’s over,” said Bob Stevenson, executive director of the association said. 

The Supreme Court on Friday was unanimous in ruling Whitmer had no authority under a 1976 emergency law to extend the emergency past April 30 without approval from the Legislature. 

But the court split 4-3 in ruling that a separate law Whitmer was using to issue executive orders — the 1945 Emergency Powers of the Governor Act — was unconstitutional because it was an unlawful delegation of legislative powers.

The lawyers for the plaintiff in the case have argued consistently since Friday that the order from the Supreme Court is effective immediately. Any argument about a 21-day stay is immaterial, said Patrick Wright, Vice President for legal affairs at the Mackinac Center for Public Policy. The center represented the three medical centers whose suit against Whitmer’s emergency powers resulted in Friday’s ruling.

“The governor should focus less on trying to extend unconstitutional COVID-19 executive orders and instead focus on enacting new legislation as the Michigan Supreme Court made clear was necessary,” Wright said.

“What prosecutor, what sheriff, what judge, what court would enforce these orders when the Michigan Supreme Court just said they’re unconstitutional?”

While Whitmer’s Department of Health and Human Services still maintains authority to create its own orders, Wright said, those directives must be within the confines of the statute granting the department that authority.

“The next question is: Exactly what powers does DHHS have under what statutes?” he said.