If you are available at 9:30 a.m. Eastern Time today (Wednesday, September 9, 2020), tune in to the Michigan Supreme Court's YouTube channel and watch and listen live as the court hears arguments in a case challenging the governor's exercise of emergency powers to respond to the covid epidemic.
The case started in U.S. District Court, but that court certified what it thought were dispositive questions of state law to the Michigan Supreme Court, which accepted the certification. Here are the questions to be answered:
1. Whether, under the Emergency Powers of the Governor Act, MCL § 10.31, et seq., or the Emergency Management Act, MCL § 30.401, et seq., Governor Whitmer has the authority after April 30, 2020 to issue or renew any executive orders related to the COVID-19 pandemic.
2. Whether the Emergency Powers of the Governor Act and/or the Emergency Management Act violates the Separation of Powers and/or the Non-Delegation Clauses of the Michigan Constitution.
The critical briefs and pleadings in the case are posted here.
We're posting this case here even though it isn't about takings for a couple of reasons. First, we're in the process of publishing a paper that takes a look at the same issue (although through the lens of Hawaii law), so this case naturally interests us. Second, we're speaking tomorrow, Thursday September 10, 2020 at an ABA webinar on this topic (so we better bone up).
Check it out. We assume that if you cannot watch the arguments in real time for some reason, they will be recorded and available later. The Michigan Supreme Court is pretty good about that kind of thing.
