Supreme Court won’t hear case seeking to curb Whitmer’s emergency powers — for now

The Michigan Supreme Court on Thursday said it won’t hear the GOP-controlled state Legislature’s lawsuit against Gov. Gretchen Whitmer, which seeks to place limits on the emergency powers she exercised during the COVID-19 pandemic.

Justices, in a 4-3 decision, wrote that the case needs to go through the Michigan Court of Appeals before they touch it, according to an 18-page order. 

“We are not persuaded that the questions presented should be reviewed by this Court before consideration by the Court of Appeals,” justices wrote. 

Top Republicans in the Legislature first announced the lawsuit against Whitmer in early May. On May 21, Michigan Court of Claims Judge Cynthia Stephens dismissed it and ruled Whitmer retains the authority to issue executive orders and extend states of emergency under the Emergency Powers of Governor Act (EPGA), a 1945 law. 

The Legislature’s challenge to Whitmer’s authority of issuing executive orders was “meritless,” Stephens wrote in her 25-page opinion. But the governor did not have the authority to re-declare a state of emergency under the 1976 Emergency Management Act (EMA), she added.

GOP lawmakers appealed Stephens’ ruling and asked for the case to be expedited to the state Supreme Court. 

As promised, Whitmer vetoes GOP bill cutting her emergency powers

That led to Thursday’s decision. Democratic-nominated Chief Justice Bridget McCormack, Justices Richard Bernstein and Megan Cavanagh were joined by Republican-nominated Justice Elizabeth Clement in their choice to not directly hear the case.

GOP-nominated justices Stephen Markman, Brian Zahra and David Viviano wrote dissents to the majority opinion – indicating they would have heard the case.