GOP lawmakers want to take Whitmer to court over emergency powers

LANSING – The Republican-controlled Legislature is planning to take Democratic Gov. Gretchen Whitmer to court over her exercise of state emergency powers during the coronavirus pandemic.

As expected, GOP lawmakers in the House and Senate made no move to extend legislative approval of Michigan's state of emergency, which was set to expire at the end of the day Thursday.

Whitmer says the state of emergency continues by executive order. And late Thursday, she issued new executive orders extending the state of emergency through the Emergency Powers of Governor Act, terminating existing states of emergency and disaster under the Emergency Management Act, and declaring  new states of emergency and disaster under that act, all effective through May 28.

Whitmer issued a separate order extending the closure of Michigan bars, theaters, casinos and other places of accommodation, and limiting restaurants to carry out and delivery service, through May 28.

But House Speaker Lee Chatfield, R-Levering, told the Free Press that Whitmer no longer has authority to enforce emergency orders starting Friday morning. That is why the Legislature offered to partner with her Thursday by enshrining in law most of the emergency orders she has issued related to COVID-19, with the same expiration dates she used, he said.

But if the governor does not partner with the Legislature by signing the bills, and thereby exercises emergency powers without legislative approval, the next step is a court fight, he said.

A notable exception to the orders included in the legislation passed Thursday was Whitmer's stay-at-home order. That is because it needs to be revamped with a more regional approach and fewer restrictions, Chatfield said.

"We are all in this together — therefore we should all be working together," Chatfield said.

Whitmer said she will veto the legislation incorporating her executive orders, which she said is unconstitutional.

"Moreover, the governor will not sign any bills that constrain her ability to protect the people of Michigan from this deadly virus in a timely manner," her office said in a news release.

Sen. Jeff Irwin, D-Ann Arbor, said the state budget is in much too precarious a position as a result of the pandemic to be spending money hiring "fancy lawyers to advance a political cause."

The House passed a resolution authorizing Chatfield "to commence legal action ... challenging the governor's authority and actions during the COVID-19 pandemic."

The resolution was passed by a voice vote in the House, over Democratic objections. The Senate passed a similar resolution, also by a voice vote, later Thursday.

"There is no question that we are in an emergency," said Sen. Adam Hollier, D-Detroit, who noted that more than 1,000 people have died from COVID-19 in his city alone.

Whitmer, a Democrat, is at odds with the Legislature over Michigan's state of emergency, from which she draws the power to issue a wide range of executive orders, including the stay-at-home order, a halt to evictions, the closure of bars, and the limiting of restaurants to carryout and delivery service.

Whitmer asked the Legislature to extend the state of emergency under the Emergency Management Act by 28 days, and lawmakers refused.

But Whitmer says the state of emergency will continue under the Emergency Powers of Governor Act. Unlike the Emergency Management Act of 1976, the Emergency Powers of Governor Act of 1945 does not require that the Legislature approve the continuation of a state of emergency after 28 days — or after any fixed time period.

Whitmer's powers under the 1945 statute are not defined with as wide a scope or in as much detail as they are in the 1976 law. Whitmer, in calling on the Legislature to extend its approval under the 1976 law, said the 1945 law also does not provide first responders and health care providers with the same protections against civil liability.

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Sen. Tom Barrett, R-Charlotte, said this week that a statute that would allow the governor to continue a state of emergency indefinitely would appear to be unconstitutional.

House Minority Leader Christine Greig, D-Farmington Hills, said "impeding the governor’s ability to quickly respond to the present crisis is frighteningly disconnected from the reality facing Michigan families and communities coping with COVID-19."

Greig said Republican leaders are "woefully out of touch with the fact that a majority of Michiganders overwhelmingly support the governor and Democrats' handling of this unprecedented crisis."

A Michigan Court of Claims judge on Wednesday issued a preliminary ruling that backs Whitmer on her use of emergency powers, but that lawsuit did not center on Whitmer's power to continue a state of emergency.

Senate Bill 858 "replaces almost all of the governor’s existing executive orders to prevent any loss of critical protections during the pandemic," House Republicans said in a news release. "Putting them into legislation also means any future revisions and extensions must be worked out in a better public, bipartisan process."

The bill originated in the Senate as a measure that would have cut from 28 days to 14 days the length of time a state of emergency would last before legislative approval was required. In a 59-41 vote, the House made major changes, restoring the 28-day duration of a state of emergency and adding in many of Whitmer's executive orders related to the pandemic. The Senate later concurred in the changes in a 22-16 vote, sending the bill to Whitmer.

The legislation would restore the liability protections found in the Emergency Management Act. It would also reopen bars and restaurants as of May 15, with social distancing guidelines. Chatfield said the Legislature is ready to work with Whitmer if that or other dates need to be adjusted.

Though the stay-at-home order was not included, and according to Chatfield's positon would no longer be in effect as of Friday morning, Whitmer has already said it will change before its current May 15 expiration date, with residential and commercial construction resuming May 7.

“The idea we want to put an abrupt end to the state of emergency and go back to normal immediately is a lazy political talking point,” Chatfield said.

“We all agree Michigan must continue taking strong steps to fight the spread of this disease. But we can both protect the public health and protect the individual people who make up our great state."

More than 1 million people are out of work and turning to the Legislature for help, he said.

"Under this plan, we can get them the answers they deserve, give them a seat at the table on an incredibly important issue and work collaboratively with our governor to meet their needs and address this crisis.”

Whitmer said Wednesday that if the state reopens its economy too quickly, it risks a second spike in COVID-19 cases that would be more economically damaging than the initial outbreak.

Contact Paul Egan: 517-372-8660 or pegan@freepress.com. Follow him on Twitter @paulegan4.  Read more on Michigan politics and sign up for our elections newsletter.