top of page

Michigan's Unconstitutional State of Emergency

Questions Answered in This Post

What’s the Controlling Legal Authority in this Case?

The Eleventh Amendment Immunity Problem

How Has Michigan’s Governor Reacted to the Court’s Decision?

What’s Law Enforcement’s take?

Unanswered Questions

Does the Science Support the Continuing Efforts to Lockdown the Country?

Should Christians Fear COVID-19?

What’s this Case About?

On May 12, the plaintiffs filed a lawsuit against Michigan’s governor in the Federal District Court for the Western District of Michigan.[i] There are two plaintiffs in this case. The first plaintiff is Michigan healthcare providers (Midwest Inst of Health, PLLC) that were prohibited from performing nonessential procedures while the governor’s executive order (i.e., EO 2020-17 now EO 2020-184) was in effect. The other plaintiff (Jeffery Gulick) is a patient who was prohibited from undergoing knee-replacement surgery. Id.

Plaintiffs filed this case in the federal district court as a civil rights case under 28 U.S.C. § 1331, 42 U.S.C. § 1983 [which is a civil action for deprivation of rights] and 28 U.S.C. § 1343 [for injunctive relief and attorney fees due to deprivation of rights and/or injury]. See Plaintiffs’ Complaint, ¶ 26.

This lawsuit also appeals to the federal court’s supplemental jurisdiction over certain the state-law claims under 28 U.S.C. § 1367. Id.

The Plaintiffs argue that “the projections upon which the government leaders made their decisions back in March 2020 were grossly inaccurate.” See Plaintiffs’ Complaint, ¶ 2.

They also argue, among other things, that “[m]edical providers are on the brink of financial ruin, facing extreme revenue shortages caused by the Governor’s order forcing the postponement or cancellation of so-called “non-essential” procedures.” They also complain that “[t]housands of healthcare workers across Michigan have been furloughed or laid off.” See Plaintiffs’ Complaint, ¶ 12.

The defendants are the Governor (Gretchen Whitmer), the Attorney General (Dana Nessel), and the Director of the Michigan Department of Health and Human Services (Image result for Director of the Michigan Department of Health and Human Services

Robert Gordon).

On October 2, at the request of the United States District Court for the Western District of Michigan, the Michigan Supreme Court resolved critical questions concerning the constitutional and legal authority of Michigan’s Governor to declare a “state of emergency” or “state of disaster” based on the COVID-19 pandemic after April 30, 2020.

Consequently, in a scathing 59-page opinion, the Michigan Supreme Court held in a 4-3 ruling that “the executive orders issued by the Governor in response to the COVID-19 pandemic now lack any basis under Michigan law [Midwest Inst of Health, PLLC v. Governor of Michigan (In re Certified Questions from the United States Dist Court), No 161492, ___ Mich ___, ___ NW2d ___ (Oct 2, 2020) p. 1].”

What’s the Controlling Legal Authority in this Case?

In issuing her executive orders in response to the COVID-19 pandemic, the governor relied upon two Michigan statutes: The Emergency Management Act, being PA Act 390 of 1976 (“EMA”)[ii] and the of the Emergency Powers of the Governor Act of 1945 (“EPGA”).

The EMG provides in relevant part that the must, by executive order or proclamation, declare a state of disaster if he or she finds a disaster has occurred or the threat of a disaster exists. The EMG also requires that the state of disaster shall continue until the governor finds that the threat or danger has passed, “or until the declared state of disaster has been in effect for 28 days.” After 28 days, is required to issue an executive order or proclamation declaring the state of disaster terminated, unless the governor’s requests an extension of the state of disaster for a specific number of days is approved by resolution of both houses of the legislature [emphasis added].” MCL 30.403(3).

Subsection of the EPGA (i.e., MCL 10.31(1)) sets forth the circumstances in which the Governor may proclaim a state of emergency and the authorized subject matter of his or her emergency powers. This subsection of the Act provides, in pertinent part, that in case of “disaster, rioting, catastrophe, or similar public emergency within the state, or reasonable apprehension of immediate danger of a public emergency of that kind, when public safety is imperiled, either upon application of the mayor of a city, sheriff of a county, or the commissioner of the Michigan state police or upon his or her own volition, the governor may proclaim a state of emergency and designate the area involved.” Id. [iii]

The Michigan Supreme Court concluded that the Governor lacked the authority to declare a “state of emergency” or a “state of disaster” under the EMA after April 30, 2020, on the basis of the COVID-19 pandemic. The Court also concluded that the EPGA itself violates Michigan’s Constitution because it purports to delegate to the executive branch the legislative powers of state government—including its plenary police powers—and to allow the exercise of such powers indefinitely. As a consequence, the EPGA cannot continue to provide a basis for the Governor to exercise emergency powers. In re Certified Questions from the United States Dist Court, supra at 22.

The Eleventh Amendment Immunity Problem

Michigan could have, but failed, to raise the issue of Eleventh Amendment immunity until after the federal district court decided to certify the questions to the Michigan Supreme Court.[iv]

Nonetheless, in federal claims—as is the case in Midwest Inst of Health—immunities and other defenses are governed by federal law:[v] As such, the Eleventh Amendment protects states and state officials against lawsuits in federal court.[vi] This rule stands whether the claims are based on state or federal law. [vii]

However, the federal district court in Midwest Inst of Health denied Michigan’s untimely assertion of governmental immunity holding that the state waived such immunity by not timely raising it in either their motions to dismiss Midwest’s lawsuit or in their initial responses to the court’s invitation to brief the suitability of certification to the Michigan Supreme Court.

Next, the federal district court applied what’s known as the abstention doctrine, which applies when a federal court has jurisdiction to hear a case because, say, a federal question is presented, but declines to hear the case out of respect for state courts when the question—as is the case here—falls within a state court’s jurisdiction.[viii]

Now, Defendants have appealed that ruling, and the matter remains pending in the United States Court of Appeals for the Sixth Circuit.

Well, what’s this Eleventh Amendment Stuff all about?

The Eleventh Amendment to the U.S. Constitution preserves the immunity of the state and bars lawsuits in a federal court filed by citizens against a state or the federal government.

The Eleventh Amendment reads as follows:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. [US Const, Am XI.] [ix]

The Eleventh Amendment was proposed and ratified by Congress in 1798 as a rejection of the United States Supreme Court’s 1793 decision in Chisholm v Georgia,[x] which involved a suit brought by a citizen of South Carolina against the State of Georgia to collect a debt created by the State of Georgia during the Revolutionary War.

The language of the Eleventh Amendment had the limited technical effect of reversing the holding of the Chisholm decision by blocking lawsuits brought by a citizen of one state against another state.

Ninety-seven years later, in the 1890 case of Hans v Louisiana, the U.S. Supreme Court expanded the application of the Eleventh Amendment so that its prohibition against suing other states extended to suits against one's own state.

That said, it must be noted that an Eleventh Amendment analysis involves some of the most esoteric rules and confusing analyses in all of constitutional law. As such, in order to appreciate the Eleventh Amendment, we must turn not to what the Eleventh Amendment actually says, but to what the United States Supreme Court says that it says.

However, in 1978 the United States Supreme Court’s decision in Alabama v Pugh,[xi] made it clear that “[u]nless a State has waived its Eleventh Amendment immunity or Congress has overridden it, … a State cannot be sued directly in its own name regardless of the relief sought.” id. However, in another series of cases, the Supreme Court told us that actions for prospective relief are not treated as actions against the State where state policy or custom are attacked in federal court by way of suing a state official in his or her official-capacity.[xii]

So, here are the key Eleventh Amendment take-aways:

  • First, the Eleventh Amendment only applies in federal court.

  • Second, a private citizen cannot sue a state or the federal government in federal court. However, there are the three (3) key exceptions:

  1. First, the Eleventh Amendment does not prevent the federal government from suing a state in federal court;

  2. Second, Congress may, by making a plain and clear statement of intent to do so, take away a state’s Eleventh Amendment immunity under section 5 of the Fourteenth Amendment;[xiii] and,

  3. Third, a state may, by making a plain and clear statement of intent to do so, waive its Eleventh Amendment immunity.[xiv]

  • Third, there is a way for a private citizen can get around the government’s Eleventh Amendment immunity. To do so, the citizen must do all of the following. . .

  1. Naming a state officer as an individual, not as an officer of state. For instance, if you believe that, e.g., State Attorney General Edward Young violated for federal rights, you’d sue Ed Young in his individual capacity, not as State Attorney General;

  2. “Authority Stripping.” That is, allege in your complaint that Ed Young acted outside of his authority by violating your federally protected rights; and,

  3. Allege the state officer violated your federally protected rights.

Why does all of this matter? Well it matters because one has to ask: How could Michigan have missed this obvious method of disposing of Midwest’s case in federal court?!?

How Has Michigan’s Governor Reacted to the Court’s Decision?

Before the Michigan Supreme Court, Governor Whitmer maintained that she could withdraw or terminate her executive order and reinstate it, thereby restarting the 28-day clock.

Whitmer continues to defend her 180 COVID-19 executive orders on the theory that she took action to protect Michigan’s residents. She also said that the state Supreme Court ruling could put the state at risk of more cases and harm the economy more overall.[xv]

Further, despite the fact that the Michigan Supreme Court ruled that Whitmer’s post April 30 executive order lack any basis under Michigan law, Whitmer said that some of her mandates will remain in effect because they were put in place by "alternative sources of authority."[xvi] Whatever that means.

Also, in her October 2 press release, Whitmer maintains that her emergency declaration and orders retain the force of law because the Michigan Supreme Court’s opinion did not become effective for at least 21 days (i.e., until Friday, October 23, 2020). [xvii] Next, she asked the court to immediately reconsider and stay the effect of its October 2 decision until after October 30, 2020.[xviii]

As to this strategy, on October 12, the Michigan Supreme Court granted Michigan’s motion for immediate reconsideration and denied the governor’s application to stay the effect of the Court’s October 2 opinion until after October 30, 2020.[xix]

Additionally, Michigan’s high court also reversed the August 21, 2020, Michigan Court of Appeals decision in a case brought by the Michigan House of Representatives against the governor.[xx] In short, Michigan’s high court’s reversal clarifies that the Emergency Powers of the Governor Act of 1945 “is incompatible with the Constitution of our state, and therefore, executive orders issued under that act are of no continuing legal effect. This order is effective upon entry.”

How has Michigan’s Republican-led legislature responded to this court ruling?

Gov. Whitmer's use of emergency powers has been in a contentious legal fight for months, with her interpretation of the Michigan Constitution being questioned by the Republican-led legislature.[xxi]

Indeed, in May, the Republican lawmakers refused to extend the Gov’s emergency declaration beyond the April 30, 2020 deadline, which is why the EPGA has been the source of the Governor’s authority to issue executive orders since then.

Consequently, the Speaker of the Michigan House (Lee Chatfield, R-Levering), called the ruling a giant win for the state.[xxii]

While the Senate Majority Leader (Mike Shirkey, R-Clarklake), agreed, but noted the ruling does not change the need for personal responsibility. [xxiii]

What’s Law Enforcement’s take?

Well, even when the Gov’s emergency declaration had the force of law, at least four (4) northern county sheriffs questioned some of the Gov’s restrictions “as overstepping her executive authority” and created a “vague framework of emergency laws that only confuse Michigan citizens.”[xxiv]

How Has the Governor’s Second Co-Defendant, Michigan’s Attorney General, Responded to the Decision?

Two days after the Court’s ruling, Ms. Nessel said that her office will no longer enforce the governor's executive orders with criminal prosecution.

Ms. Nessel’s office went on to say that “her decision is not binding on other law enforcement agencies or state departments with independent enforcement authority[.]"[xxv]

How Has the Governor’s Third Co-Defendant, Michigan’s Director of the Department of Health and Human Services, Responded to the Decision?

Three days after Michigan Supreme Court issued its opinion, Michigan’s Department of Health and Human Services (“MDHHS”) issued an emergency epidemic order under MCL 333.2253, a law “established specifically in response to the “avian influenza or another virus or disease that is or may be spread by contact with animals [emphasis added].”[xxvi]

DHHS’s emergency order was effective through October 30, 2020. I say was because, on October 9, DHHS replaced its emergency epidemic order with a more detailed Gathering Prohibition and Face Covering Order, which is effective through October 30, 2020.[xxvii]

In short, Michigan’s state department of health and human service’s Gathering Prohibition and Face Covering Order, perhaps fleshes out one of the governor’s “alternate sources of authority” as it claims for itself, among other abilities, the power:

· To limit attendance at certain gatherings

· To impose capacity restrictions in certain public and private spaces

· To impose capacity restrictions in government and private workplaces

· To require face coverings at gatherings

· To impose restrictions on restaurants and organized sporting events

· To criminalize disobedience declaring a violation with the order as a misdemeanor punishable by imprisonment for not more than 6 months, or a fine of not more than $200.00, or both; and the power

· To deem certain members of Michigan law enforcement as “department representatives” specifically authorized to investigate potential violations of this order.

Unanswered Questions

While the Supreme Court’s Decision answered some questions, we’re nonetheless left with at least four Unanswered Questions.

First, is the question of Michigan’s state immunity defense, which the WDM deemed waived and is now before the United States Court of Appeals for the Sixth Circuit.

That is, did the state waived such immunity by not timely raising it in either the principal briefs of their motions to dismiss or in their initial responses to the court’s invitation to brief the propriety of certification to the MS Court?

We’ll have to wait and see with the Sixth Circuit says.

Second, what of these "alternative sources of authority."[xxviii] Will these too undergo a court challenge?

Third, how will this ruling effect the temporary expansion of unemployment benefits under Mich Exec Order No 2020-76, which the court says lacks legal authority?

Fourth, and finally, unlike states and state officials sued in an official capacity, the United States Supreme Court has told us that municipalities are not protected by the Eleventh Amendment.[xxix]

So, what effect with the Court’s ruling have on the several Michigan municipalities that have issued local ordinances in response to the pandemic that are similar to executive orders issued by Governor Whitmer? For instance,

Thus, the counties and the City of Detroit, which have issued their own orders may also face legal challenges because, generally, the substantive requirements of Michigan constitutional claims are indistinguishable from those protected by the U.S. Constitution.[xxx]

Does the Science Support the Continuing Efforts to Lockdown the Country?

No. It does not. According to an October 4 petition titled The Great Barrington Declaration, numerous infectious disease epidemiologists and public health scientists levy grave concerns about the damaging physical and mental health impacts of the prevailing COVID-19 policies and recommend an approach that they call Focused Protection.[xxxi]

According to The Great Barrington Declaration, Focused Protection is the most compassionate approach that balances the risks and benefits of reaching herd immunity. Per many epidemiologists, “herd immunity” is the point at which a disease stops spreading because nearly everyone in a population has contracted it.

Thus, under the Focused Protection doctrine, we should allow those who are at minimal risk of death to live their lives normally to build up immunity to the virus through natural infection, while better protecting those who are at highest risk. Id.

Additionally, the World Health Organization (“WHO”) seems to have changed its position on government lockdowns as a measure for combating the Wuhan coronavirus. On October 8, Dr. David Nabarro, the WHO's Special Envoy on Covid-19, told The Spectator that lockdowns have unintended consequences and should be avoided.

Citing some of the harmful negative consequences of prolonged lockdowns—e.g., as evidenced by the plaintiffs in the Midwest Inst of Health case—Dr. David Nabarro told The Spectator that "We in the World Health Organization do not advocate lockdowns as the primary means of control of this virus[.]”

Dr. Nabarro also warns that "Lockdowns just have one consequence that you must never ever belittle, and that is making poor people an awful lot poorer," Dr. Nabarro warned. [xxxii]

Then, there’s the October 12, 2020, New York Times science report, which says that experts are confident that the pandemic will be over far sooner than expected and that President Trump’s efforts are working with remarkable efficiency.

New York Times reporter Donald McNeil Jr. writes that “[e]vents have moved faster than I thought possible. I have become cautiously optimistic[.]” McNeil goes on to say that “[e]xperts are saying, with genuine confidence, that the pandemic in the United States will be over far sooner than they expected, possibly by the middle of next year.”[xxxiii]