By Zachary Gorchow
Executive Editor and Publisher
Posted: May 26, 2020 11:53 AM

It got lost in the bonkers news cycle last week, but the Michigan Court of Appeals handed Governor Gretchen Whitmer a major setback in how she uses executive powers.

Remember the Whitmer administration's issuance of emergency rules in 2019 banning the sale of nearly all flavors of e-cigarettes?

Last week, the Court of Appeals unanimously upheld the issuance of a preliminary injunction by the Michigan Court of Claims blocking the Department of Health and Human Services from implementing the emergency rules. At issue is not whether the ban is good or bad policy, but whether the department had legal justification to invoke the emergency rules process, which allows a department to promulgate rules much more quickly than through the traditional administrative rules process.

The Court of Claims ruled that the department failed to justify using the emergency rules process, and the Court of Appeals, with two judges of a more conservative bent and one judge of a more liberal bent, agreed. Ms. Whitmer, who had directed DHHS to act and made a major publicity push around the emergency rules, issued a sharply critical statement after the Court of Claims ruled against her, claiming it: "misreads the law and sets a dangerous precedent of a court second-guessing the expert judgment of public health officials dealing with a crisis."

Amid the COVID-19 pandemic and the Midland County floods, the Court of Appeals ruling should not get lost. Vaping businesses sued the state claiming the emergency rules should be blocked because they faced imminent financial ruin and the state had failed to follow the Administrative Procedures Act in using the emergency rules process.

"We hold that the DHHS and the governor are entitled to due deference with regard to the finding of an emergency under MCL 24.248(1), but not complete capitulation," the appellate court ruled.

There's no indication yet on whether Ms. Whitmer and DHHS will appeal, but it's worth noting now that of the four judges that have weighed in so far, two were named to the bench by Democratic governors, one was named to the bench by Governor Rick Snyder and the other was directly elected to the bench but has sought the Republican nomination to the Supreme Court. The Court of Claims judge on the case, Judge Cynthia Stephens, is the same one who just ruled in the governor's favor on her use of the Emergency Powers of the Governor Act in the pandemic.

If the case does go to the Michigan Supreme Court, it's hard to say what the justices might do, but the first two rulings do not bode well for the governor.

Ms. Whitmer has made it clear that she will use the powers of the Executive Office to their full potential, especially with a Republican-controlled Legislature that opposes much of her agenda.

To the extent the governor intended to use the emergency rules process to achieve some of her policy goals, the courts so far are saying that's not a viable option.