What happens if the Legislature fights Whitmer’s state of emergency extension? 

Legal experts detail how sessions could work outside the Capitol

Gov. Gretchen Whitmer (front center), Senate Majority Leader Mike Shirkey (left), Lt. Gov. Garlin Gilchrist (back center) and House Speaker Lee Chatfield (right) at the State of the State address, Jan. 29, 2020 | Andrew Roth

As Michigan has surpassed 10,000 confirmed COVID-19 cases and 400 deaths, Gov. Gretchen Whitmer is seeking to extend the state of emergency, which would allow an extension of measures like “Stay Home, Stay Safe” set to expire April 13.

“We know that we are in for a tough three, four, five, six weeks here in front of us,” she said at a Thursday press conference. “We are far from out of the emergency that we find ourselves in.” 

While a House GOP spokesman indicated the chamber will OK the extension when it returns Tuesday, state Senate Majority Leader Mike Shirkey (R-Clarklake) opposes Whitmer’s request for 70 days, saying it’s too long.

Whitmer declares state of disaster over COVID-19, Senate GOP leader opposes 70-day extension

Several provisions in the Michigan Constitution have been at play as Whitmer exercises her executive power to combat the virus, signing more than two dozen executive orders, including shutting down in-person learning in K-12 schools for 2019-20, banning water shutoffs and suspending non-essential medical and dental procedures. Some Republicans have grumbled and questioned the legality of certain orders, although no action appears to have been taken. 

But what happens if the Legislature rejects the request to extend the state of emergency or only approves it for a short time as COVID-19 continues to spread?

Whitmer declared a state of disaster on Wednesday. That’s on top of the state of emergency which is set to expire April 7 — 28 days after she issued the order on March 10 — unless the Legislature agrees to extend it.

The declarations of a state emergency and disaster cite the Emergency Management Act, which allows Whitmer to independently declare a state of emergency and/or disaster. The executive orders also cite the Emergency Powers of the Governor Act

Whereas the Management Act has the 28 day limit, the Emergency Powers of the Governor Act allows a state of emergency and rules to combat the declared danger to only “cease to be in effect upon declaration by the governor that the emergency no longer exists.”

Whitmer: ‘We are nowhere near the end’ of COVID-19 outbreak 

Even with the 28-day limitation on declarations through the Emergency Management Act, there is nothing expressly supporting or hindering the governor’s ability to issue another state of emergency and simply reset the clock, according to Steve Liedel, former chief counsel to Gov. Jennifer Granholm .

Although the two acts are vague in the qualifications the definition of an emergency and what it means for it to be, Liedel said the Legislature must have known a pandemic was possible and purposefully granted the governor a big role in a state emergency.

“The statutes contain clear language, the legislature decided to give pretty broad authority to the governor,” Liedel said. “They said, ‘You as a governor have a duty to respond to an emergency.’”

Liedel said he hopes the governor and Legislature work together to decide what’s best to fight the spread of COVID-19. Even if that means a compromise on Whitmer’s 70-day extension request, he said public health should be a priority.

“The easiest option that’s probably in the best interest of everyone in government and the general public, given we’re in the state of emergency, is for the Legislature to take her recommendation seriously whether it’s 70 days or some other number,” Liedel said.

Although the governor takes on a huge leadership role in the event of a disaster, she doesn’t get absolute power in decisions and executive orders, said Mark Brewer, an attorney and former Michigan Democratic Party chair. The Legislature cannot override an executive order, but all executive orders can be taken to court.

“The courts are always there,” Brewer said. “Neither the Legislature nor the governor ever have absolute power.”

The state House and Senate have paused sessions since March 17. Since then, 44-year-old state Rep. Isaac Robinson (D-Detroit) died Sunday after having COVID-19-like symptoms, as Ben Hirschmann, 24, an intern for state Sen. Pete Lucido (R-Shelby Twp.), did on Tuesday. State Rep. Tyrone Carter (D-Detroit) tested positive for COVID-19 but told the Advance earlier this week he was feeling better.

Both chambers plan to come back Tuesday to vote on the state of emergency extension and could vote to adopt safer meeting formats during the pandemic.

The Legislature has pretty broad authority and the other branches of government don’t really interfere with the rules under which the Legislature conducts its own business, Liedel said. If members want to vote to change the venue, they can, but they have to abide by the law.

Article 4 Section 20 of the state Constitution simply states: “The doors of each house shall be open unless the public security otherwise requires.”

This does not mean the Legislature can have a private meeting, Brewer notes.

“Whether they’re meeting in person, or they figure out a way to meet remotely. it has to be done in a way that the public and the press can observe what they’re doing,” Brewer said.

Robinson’s death renews calls for safer Legislature protocols

During the vote on the Republican Right to Work bills back in December 2012, the Capitol closed its doors after thousands of union members arrived to protest, with some members of the media temporarily shut out. By the next day, Ingham County Circuit Judge William Collette ordered the doors to be opened.

There is a legal argument for Whitmer to use a constitutional provision to change the meeting location for the Legislature, Liedel said.

Article 5 Section 16 of the state Constitution says: “The governor may convene the legislature at some other place when the seat of government becomes dangerous from any cause.”

In this case, the seat of government is the Capitol building where all of the House meets in one room and the Senate meets in another, making social distancing difficult. The interpretation of place could mean an online meeting.

Brewer said he doesn’t think the governor would have a legal argument to intervene, but it’s hard to tell as neither of these provisions have been put into action. 

“These provisions have never been invoked, never had to,” Brewer said. “We don’t have any interpretations, or practice in Michigan as to what they mean.”