Michigan attorney says 'burn your masks' and forget COVID emergency orders after state Supreme Court decision

SOUTHFIELD, Mich. (FOX 2) - Friday afternoon, as most people were logging off for the weekend, the Michigan Supreme Court issued a ruling that many of Governor Gretchen Whitmer's emergency orders regarding COVID-19 safety are not legal.

The stunning ruling said she illegally drew authority from a 1945 law that doesn't apply. One aspect the court pointed out was the redeclaring states of emergency in what has been a string of orders from Whitmer. The state of emergency is meant to last 28 days.

"The Governor does not possess the authority to exercise emergency powers under the Emergency Powers of the Governor Act of 1945 (the EPGA), MCL 10.31 et  seq., because that act is an unlawful delegation of legislative power to the executive branch in violation of the Michigan Constitution.  Accordingly, the executive orders issued by the Governor in response to the COVID-19 pandemic now lack any basis under Michigan law."

Attorney Katherine Henry has argued against the governor's orders in court for the past 6 months, saying Whitmer had no grounds to continue extending her state of emergency every 28 days.

The Michigan Supreme Court ruled two different ways on Friday. One rendered a unanimous, 7-0, opinion and the other was a narrow, 4-3, opinion. 

"Specifically, they said she has no authority, on a 7-0 opinion, no authority to issue these executive orders, according to the emergency management act of 1976. That was the first part and that was the part that was unanimous. That she has zero authority to do this," Henry said.

However, the governor issued a press release said the ruling was 4-3. Henry explained the court actually answered two questions.

"The second question was whether the Emergency Powers of Governor act violated the state constitution, namely, separation of powers clause - article 3 section 2," she said. "What the court said in a 4-3 opinion, in that regard, was that yes, the emergency power of governor act of 1945 is entirely unconstitutional. The governor has no way to rely on that to act on our behalf."

The ruling means the Republican-controlled Michigan House and Senate will have a say in COVID-19 orders.

Henry said the governor and her office took liberties the state law too far when she continued to extend the emergency orders.

"The governor has had some very creative reading skills when it comes to our state laws in Michigan and the constitution. (The) 7-0 (ruling) specifically said that the legislature has to be involved after 28 days, according to the 1976 emergency management act. They did give that first extension on April 7th (when) they voted to give her another 23 days, After April 30th, the only way they could continue is if the legislature voted to extend the state of emergency yet again. Which they did not. So the court, in a 7-0 decision said, very clearly, the governor had to get the approval of the legislature to go beyond that initial 28 days," Henry said.

On Monday, Gov. Whitmer said more than 800,000 people could lose unemployment benefits if the ruling goes into effect immediately. 

The governor has said the new order doesn't go into effect for at least three weeks. 

“It is important to note that this ruling does not take effect for at least 21 days, and until then, my emergency declaration and orders retain the force of law," she said. "Furthermore, after 21 days, many of the responsive measures I have put in place to control the spread of the virus will continue under alternative sources of authority that were not at issue in today’s ruling," the governor said on Friday.

Herny said that's not true. She said it means we could ignore all mask mandates, social distancing, and more, effective on Friday at 4:35 p.m.

"That means burn your masks right now if you didn't already. Open your gym, and movie theatre and open whatever business you have. Go on and frequent whatever business you would like to go to, if you have a church that's limited your services because of how you're reading the EOs, forget that. All of those executive orders, based on COVID-19 circumstances, from 2020, they're out, they're gone, they're done," Henry said.

Additionally, Henry said there's nothing in place regarding any of the executive orders from Whitmer and that the governor's office has not yet filed for a rehearing. She also said the governor can't appeal the ruling to a higher court because the only court higher than the state Supreme Court is the U.S. Supreme Court, which does not have jurisdiction over state law or state constitution.

"Our United States Supreme Court doesn't have jurisdiction to hear those kinds of cases. They can only answer issues about if our state law or our state constitution violated the federal law or federal constitution. So the highest court in the land that can answer these questions, has spoken. The decision has been rendered. It's there as of Friday at 4:35. So she can try and whine and complain all she wants, she's not going to get anywhere," Henry said.

This weekend, Oakland County issued an order that residents wear a mask in all public places. Henry vowed that she would be one of the first attorneys lining up to stop that as well.

Herny spoke to FOX 2 on Sunday's edition of Let It Rip. You can watch Let It Rip every Thursday night at 10:30 p.m. and the weekend version Sundays at 8:30 a.m.