Michigan Supreme Court justice pushes back on Governor Whitmer’s emergency powers

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LANSING — A justice of the Michigan Supreme Court raised pointed and repeated questions Wednesday about whether the 1945 emergency law relied on by Gov. Gretchen Whitmer was ever intended to deal with a health pandemic.

Justice David Viviano pressed the issue during oral arguments, pointing out that the Emergency Powers of Governor Act was enacted in the wake of Detroit’s 1943 race riot, as it is known, and was referenced in news reports at the time as providing the governor with the police powers needed to respond to such events without having to declare martial law.

The 1945 law says it is intended to “invest the governor with sufficiently broad power of action in the exercise of the police power of the state.”

Justice David Viviano
Viviano also said that the emergency powers governors are using in most other states to address the coronavirus pandemic are public health statutes, and Michigan has similar provisions in its public health code to address pandemics, which have existed for a century or longer. In fact, he said, some of those orders have been issued during the coronavirus pandemic by the director of the Department of Health and Human Services, though those orders appear redundant to emergency orders issues by Whitmer.

“Do you think the Legislature was smart enough in 1945 to know what an epidemic was?” Viviano, an appointee of former Republican Gov. Rick Snyder, asked Deputy Solicitor General Eric Restuccia, representing the governor’s office.

Restuccia pushed back, saying that although the Emergency Powers of Governor Act does not specifically mention epidemics, it says it can be invoked when “public safety is imperiled” and it references disasters and catastrophes that would clearly include major threats to public health.



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