Following MI Supreme Court Decision, AG Will Not Enforce Gov. Whitmer’s COVID Shutdowns
AG: “In light of the Supreme Court’s decision on Friday, the Attorney General will no longer enforce the Governor’s Executive Orders through criminal prosecution”
On Saturday, I posted that the Michigan Supreme Court found that Gov. Gretchen “Shutdown Queen” Whitmer “did not have authority after April 30, 2020, to issue or renew any executive orders related to the COVID19 pandemic under the EMA [Emergency Management Act of 1976].”
In light of this decision, Michigan Attorney General Dana Nessel announced that she would no longer enforce Whitmer’s COVID-19 executive orders.
Attorney General Dana Nessel will no longer enforce Gov. Gretchen Whitmer’s executive orders after the Michigan Supreme Court ruled Friday that one of the laws underpinning the orders was unconstitutional.
Nessel’s decision comes as Whitmer’s team has argued that her orders would stay in effect for 21 days after the ruling, a reference to a 21-day period in which parties can ask for reconsideration.
But opponents have said the 21-day rule doesn’t apply to rulings issued in response to a federal certified question as was the case in Friday’s Supreme Court decision.
Further, the language of the order, clearly calling all orders issued after April 30 to be unconstitutional seems to support immediate effect.
Nessel’s office on Sunday made clear the department “will no longer enforce the governor’s executive orders through criminal prosecution.”
Whitmer pushed back on the state’s Supreme Court decision and vowed to keep her executive orders in place for 21 days.
Statement from Governor Whitmer on Michigan Supreme Court Ruling on Emergency Powers: pic.twitter.com/kQKiAjD6gp
— Governor Gretchen Whitmer (@GovWhitmer) October 2, 2020
However, this seems like a losing battle, especially with the AG declining to pursue criminal charges against anyone who disobeys Whitmer’s orders.
The Detroit News continues:
The Supreme Court on Friday was unanimous in ruling Whitmer had no authority under a 1976 emergency law to extend the emergency past April 30 without approval from the Legislature.
But the court split 4-3 in ruling that a separate law Whitmer was using to issue executive orders — the 1945 Emergency Powers of the Governor Act — was unconstitutional because it was an unlawful delegation of legislative powers.
The lawyers for the plaintiff in the case have argued consistently since Friday that the order from the Supreme Court is effective immediately. Any argument about a 21-day stay is immaterial, said Patrick Wright, Vice President for legal affairs at the Mackinac Center for Public Policy. The center represented the three medical centers whose suit against Whitmer’s emergency powers resulted in Friday’s ruling.
“The governor should focus less on trying to extend unconstitutional COVID-19 executive orders and instead focus on enacting new legislation as the Michigan Supreme Court made clear was necessary,” Wright said.
“What prosecutor, what sheriff, what judge, what court would enforce these orders when the Michigan Supreme Court just said they’re unconstitutional?”
Here is Nessel’s full statement (via Fox17):
In light of the Supreme Court’s decision on Friday, the Attorney General will no longer enforce the Governor’s Executive Orders through criminal prosecution.
However, her decision is not binding on other law enforcement agencies or state departments with independent enforcement authority. It’s her fervent hope that people continue to abide by the measures that Governor Whitmer put in place – like wearing face masks, adhering to social distancing requirements and staying home when sick – since they’ve proven effective at saving lives.
If it weren’t for the Governor’s actions, countless more of our friends, family and neighbors would have been lost to COVID-19. We can respect both the court’s decision and the advice of medical experts by continuing with these important measures voluntarily.
There’s a novel idea, let the people themselves measure their own risk and personal response to the Wuflu pandemic. No one is dragging symptomatic people from their homes, ripping masks from their faces, or forcing them into large group gatherings. If people want to take whatever precautions they feel best, more power to them. The people.
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Comments
How is the governor recall effort going in Michigan?
More than enough signatures to fill lots of Democrat Party coffins.
Sounds like Attorney General Dana Nessel can see which way the wind is blowing, and would like to be Governor in two years.
Not if Democrat.
Next, let’s see some blue-city police chiefs show the inguinal fortitude to crack down on rioters instead of those defending themselves from rioters, regardless of their marching orders from their Marxist mayors.
If you have any knowledge of the character of this Dana Nessel person, you’ll have an understanding of how much of a big deal her actions are. She’s a loon’s loon. There is no lefty idea that she considers beyond consideration.
Sorry, but “wearing face masks, adhering to social distancing requirements and staying home when sick” have NOT been proven “effective” at reducing the transmission of viral infections. No RCTs to back up anything in that claim. At this point it’s just more virtue-signaling superstitious horse puckey.
Funny how the AG should have known the law better than anyone and it took a trip to the woodshed to get her mind right.
State health department just reinstated all the restrictions…. by what authority I do not know.
And, please stop putting her picture front and center, I can’t scroll down fast enough…
In Democrat controlled polities, being a powerful Democrat overrides both law and Constitution. Just ask her.
Subotai Bahadur
Nenner neened neender to Wretched Gretchen. These protofascists don’t give up easy. Sounds like she’s got her little side kicks in the state public health department.
Now let’s see how highly the citizens of MI value civil rights. Since the orders were not constitutional but many individuals and business owners students etc were harmed by these unconstitutional dictatorial edicts where are the civil suits?
Gov Whitmer clearly acted beyond the scope of authority for her office. She was repeatedly cautioned not to do so but choose to ignore the advice to seek legislative consent. She put the full force of state government to bear upon the citizens of her state.
Now it’s time for her to pay for the damage she wrought.
That is pretty much exactly what qualified immunity is actually for. She relied in good faith on the 1945 statute, and had no reason to believe it was unconstitutional. No court had ruled that way, so she had no duty to know it.
Not so fast, cowboy. Qualified immunity grants government OFFICIALS, not the government, immunity from civil suits unless the Plaintiff shows that the official violated “clearly established statutory or constitutional rights of which a reasonable person would have known”. The law Whitmer abused is fairly clear. Her authority is null after 28 days. A “reasonable person” could easily read the body of the law and conclude the inherent limitations on executive authority there enshrined. In addition, instead of exploring these limits, she proceeded to disregard those limits, even after mass protests and learned individuals pointed out her abuse. Yet she continued that abuse, without abatement.
And how do you know she relied upon the 1945 statute “in good faith”? That is a supposition without evidence or foundation. There is quite a bit more evidence for infidelity to limiting statute, which is clear, with those clear limitations being pointed out by a great number of people, to include a unanimity of the judges ruling.
In any event, if a judge and jury decides she acted outside the constraints to which a reasonable person would so reason, she is not protected by qualified immunity.
Whitmer is an official. And the unconstitutionality of the statute was not established at all, let alone clearly.
No, it isn’t. The 1945 statute on hich she relied has no such limit.
How so? The statute does not place any limit on the extent of an emergency declaration. Not only could a reasonable person very easily not have known it was unconstitutional, but for sixty-five years nobody noticed this constitutional flaw that a the court just found in it. Even now, three supreme court judges didn’t see that flaw. So how could you claim a reasonable person would have seen it.
In any case, that is not the test for qualified immunity. The test is not whether a reasonable person would have reasoned that the statute is unconstitutional; it is whether a reasonable person would have known that its unconstitutionality has been clearly established. Since it hadn’t been, no reasonable person, or even unreasonable person, could possibly have known it.
There is a presumption that any statute is constitutional unless and until it is struck down. Especially since it had gone unchallenged for 65 years, and the later statute explicitly referred to it and endorsed it.
The only unanimous decision was on the 1976 statute, which was not in dispute. The governor said she was relying on the 1945 statute, which the 1976 one explicitly left in effect. The decision to strike that down was a party-line 4-3 vote.
Again, that is not the test. The test is whether a court has already explicitly ruled that way, and a reasonable person would have known of that ruling. If there is no explicit court decision then the constraint has not been established so no reasonable person could possibly know that it has been.
Milhouse
So you’re argument is if a government official takes an action which they may or may not believe in their heart of hearts is constitutional then until a court rules against it, that action is constitutional?
No. That isn’t qualified immunity. The principle of qualified immunity exists to protect non policy making personnel who simply execute the within the EXISTING framework of laws, regulations, policy and training to which they are subjected.
What you are describing is some sort of modern day application of a veto by the Roman Tribunes of the Plebes. Admittedly SCOTUS and the State Supreme courts have had to explain basic constitutional principles to some officials and lower court judges recently. Those explanations were in fact, admonsishments to those who were seeking to create new and novel interpretations, they were simply reinforcing EXISTING legal and constitutional understanding.
A future example (s) will be the various states who convinced a shopped Federal Judge to alter existing election law because; Rona. I am sure you recall that in Bush v Palm Beach and Bush v Gore the court didn’t ‘say Bush won’. The court in essence held that questions of equal protection for the way and types of votes cast were to be counted/not counted and the judicial intervention into a clear legislative power, selection of electors, was a problem.
The point on all the currant non legislative tinkering and adjustments to the elections, at least for selection of electors, is that it is unquestionably unconstitutional. That ain’t even close to being a question.
So my final point is that no matter if the SCOTUS drop kicks a party into infinity for bringing some asinine issue before the court. The issue was unconstitutional yesterday, it is today and will be tomorrow.
As Lincoln is supposed to have replied to a third attempt to change his mind ‘G..damn it I already told you no twice!’ Simply asking again, so to speak, doesn’t give the executive the ability to invoke qualified immunity.
Qualified immunity means that when a government official — including a state governor — takes an official action that no court has yet explicitly found to be illegal, then he cannot be sued for it, even if a court later finds that it was indeed illegal.
In this case it’s far better than that. Not only had no court explicitly found the statute to be unconstitutional, Whitmer had no reason to even think it might be. It had stood without challenge for 65 years, and even now 3 supreme court justices found it constitutional. So how can you say no reasonable person would have thought it constitutional?
I believe that the core of our disagreement is found in your statement to the effect that since no court ruled it unconstitutional then why would the Governor have reason to believe it to be unconstitutional.
A single judge nor the judicial process is the only arbiter of whether an act is constitutional. As an example the executive could veto a legislative act based upon the executive’s constitutional interpretation. So from this example we see that the executive branch is capable of making it’s own constitutional interpretation and acting upon it independently of the judiciary.
The courts do not posses some exclusive mystical ability to determine whether an act is or is not constitutional. Do they have a role? Yes, a large one, but it isn’t exclusive.
Simply getting a Judge to sign off on something doesn’t mean that something is forevermore constitutional. Precedents are overturned on occasion.
I don’t want to overstate your argument but it seems as if you are attempting to place far too much power/authority in the Judiciary, IMO.
I don’t know how the State Health Department can do that when it’s unconstitutional?
Different statute. Nobody has ruled it unconstitutional, and there’s no reason to suppose it is.
https://www.detroitnews.com/story/news/local/michigan/2020/10/05/state-health-department-issues-mask-mandate-after-high-court-nixes-whitmers/3628181001/
Here’s the story
It says “has power to issue orders in epidemic “… this is a pandemic
Different
Didn’t the CDC state that the epidemic was over a couple of months ago?
No, it isn’t. A pandemic is simply an epidemic that happens in many countries at once.
There have been 20 recall petitions filed, 10 approved.
DemoncRats yell “rule of law” until the law impinges on their authoritarian rule. Then they tell the law to go pound sand.
Ding Dong the witch is dead, the witch is dead, the witch is dead. Gretchen the wicked witch of Michigan.
Maybe she can summon her coven to help out.
“The View” just started their new season, season 24, in September so they can’t break away just now.
Someone taking away her broomstick?
Or not letting her to have flying monkeys?
“Off with their heads!” … she does have that Queen of Hearts (Alice in Wonderland / Disney) look about her …
Gretchen seems like a square jawed shemale for the Kit Kat Klub
That woman is so damned ugly that they should put black tape over her eyes like they used to do with nasty, XXX rated films.
Her countenance offends my very soul… as in imagining that Chelsea Clinton has an older sister from one of Bill’s indiscriminate biological episodes.
Haha, she’s so nasty that even Al-Gore would walk away and take his 12 pack with him.
Stacey Abrams, Liz Warren, and Hillary Clinton say Hi.
This had to send the Far Left Wing Detroit News into a frenzy! The “Newspaper” has been a cheerleader for Governor Witless from Day 1.
I love this:
Gretchen: You will respect my authority!
Court: Actually, you don’t have any.
Gretchen: Well, I will impose my will by way of other governmental forces!
AG: Yeah, I think I’m going to side with the court on this one. So, no.
(Cue the Munchkin song)
Why did the SCOM allow unconstitutional orders to remain in effect for another 21 days?
I believe she just lost all her teeth!