Michigan Supreme Court’s Ruling on the Governor’s Authority for Executive Orders

Background
On October 2, 2020, the Michigan Supreme Court ruled that the statutory authority Governor Whitmer has been relying on as the source of the authority to issue executive orders either do not authorize the Governor’s actions or are unconstitutional.

This ruling resulted in new executive action from the Michigan Department of Health and Human Services (DHHS) and some county governments.

Michigan Department of Health and Human Services (DHHS)
On October 5, 2020, DHHS issued an emergency order titled Gathering Prohibition and Mask Order. Similar to the Governor’s executive orders, this Order limits the size of gatherings, requiring the use of masks in indoor spaces and while playing organized sports, and prohibits congregation at food service establishments. Violations can result in misdemeanor charges as well as civil fines of up to $1,000. This Order is currently set to expire on October 30, 2020.

County Orders

  • Oakland: Order for individuals to wear a mask when in an indoor space, when outdoors and unable to socially distance, when waiting for or riding public or shared transposition, and when participating in an organized sport.
  • Ingham: Four orders addressing masks, gatherings and events, restaurant capacity and employee screening.
  • Washtenaw: Four orders addressing masks, gatherings and events, restaurant capacity and employee screening.
  • Other Counties: Wayne County, Macomb County, St. Clair County, Kent County and Ottawa County have either issued statements or have not yet issued emergency orders.

Next Steps
The Governor and the Legislature are currently negotiating the specific provisions of her executive orders that will be codified. The Senate is scheduled to return to session October 8, and the House is anticipated to return the following week.

Lipson Neilson’s COVID-19 Resource Center
We will continue to closely monitor developments for this issue on all levels of government, and in the courts. If you have any questions please contact Lipson Neilson attorney Steve Malach at 248-593-5000, or any of the attorneys on our COVID-19 Resource Center team.