GOP lawmakers file lawsuit to gut Whitmer’s emergency powers

(L-R): Senate Majority Leader Mike Shirkey, Jan. 14, 2020 | Laina G. Stebbins

Michigan GOP leaders on Wednesday announced they filed a lawsuit against Democratic Gov. Gretchen Whitmer in an effort to curb her executive powers during the COVID-19 crisis.

State Senate Majority Leader Mike Shirkey (R-Clarklake) and House Speaker Lee Chatfield (R-Levering) said their suit aims to limit Whitmer’s ability to make emergency declarations during the COVID-19 pandemic. It was filed in the Court of Claims, but is expected to end up in the Michigan Supreme Court. Troy-based law firm Bush Seyferth PLLC will represent the Legislature. 

“The fact is, no one wanted to go to court,” Chatfield said. “No one wanted to have this battle. It was very avoidable.”

Last week, the GOP-controlled Legislature gave Shirkey and Chatfield the green light to pursue legal action in a lengthy session that happened the same day as a right-wing protest at the Capitol. 

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Two Michigan laws are being used as a basis for Whitmer’s emergency orders during the COVID-19 pandemic, which has killed more than 4,100 Michiganders and sickened more than 44,300. 

The first is the Emergency Powers of Governor Act of 1945, a law that lets the governor declare a state of emergency without the Legislature’s approval. A second law, the 1976 Emergency Management Act, also allows the governor emergency powers, but it states the Legislature must approve any extensions of an emergency declaration beyond 28 days.

Whitmer has repeatedly said her orders shuttering businesses, schools and more have been issued with the intent to stop COVID-19’s spread and prevent a second coronavirus wave. 

Whitmer’s spokesperson Tiffany Brown called the lawsuit a “partisan game” that won’t distract the governor. 

“Her No. 1 priority is saving lives. She’s making decisions based on science and data, not political or legal pressure,” Brown said in a statement. “She has brought together leaders in health care, business, labor, and education to develop the MI Safe Start plan to re-engage our economy in a way that protects our workers and their families.”

Whitmer: ‘This is not a political problem. This is a public health crisis.’

The governor will continue to listen to medical experts to put the safety and health of Michigan residents first, Brown added. 

Republicans in the Legislature have been primarily focused on the impact on businesses and want to take more accelerated action to reopen the economy, which has, like other states across the nation, been hit hard by the pandemic. 

“For the protections of Michigan citizens into the future, the 1945 law must be repealed,” Shirkey said at a Wednesday news conference. “It is our firm belief that that law does not give power to the governor to rule the entire state on their own as long as they like and today we are asking the courts to affirm our opinion.”

The speaker said he believes the government’s current response and a “one-size-fits-all” approach has led to millions of families being hurt.

“That’s why we’re here today — why we’re making this announcement — because we believe this step is necessary to ensure their voice is heard again,” Chatfield said. 

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Shirkey noted at the press conference that he can’t see Whitmer signing a GOP bill that would repeal the act, so it’s up to lawmakers to take action in court. 

There was just a test case. Both houses of the Legislature recently passed a bill that would quash Whitmer’s emergency powers. Dine-in restaurants, bars, gyms, movie theaters and other public venues cannot reopen until May 28 under Whitmer’s most recent order. Under the bill, Senate Bill 858, the day to reopen would fall on May 15.

The governor took her veto pen to the bill.

“I will not sign any bills that constrain my ability to protect the people of Michigan from a deadly pandemic in a timely manner,” she wrote Tuesday.

Shirkey said he’s asking for an expedited process in the case, but he can’t predict how long it will take.

“I fully anticipate the courts will deal with this as soon as they can,” Chatfield said, adding they made the request to expedite the case in order to get a more immediate answer for constituents. 

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But the lawsuit doesn’t have the support from House or Senate Democrats.

“Let us be abundantly clear: this lawsuit is driven solely by legislative Republicans and has no support from the Senate Democratic Caucus,” the caucus said in a statement. “We are appalled that those across the aisle are choosing a global pandemic as the time to pick political fights with the governor instead of focusing on what we can do to help the people of our state.”

The lawsuit came to fruition this week after Shirkey said in a right-wing radio interview Monday that he wanted to focus on a ballot measure to check the governor’s power, although Chatfield didn’t endorse it. At that time, Shirkey said a lawsuit might come next week. But two days later, he and Chatfield were announcing the filing.

On Monday, Whitmer was asked about the possible lawsuit and working with the Legislature.

“I’m happy to work with the Legislature. I think, ideally, we all get on the same page here,” Whitmer said. “What I can’t do is negotiate like this is a political issue. This is a public health issue. I need to listen to the epidemiologists and the health experts in our state and across our country, and that’s precisely what I’m doing.”

The state lawsuit isn’t the only legal action that has been taken against Whitmer. In a federal lawsuit filed Monday, U.S. Rep. Paul Mitchell (R-Dryden) claimed Whitmer’s emergency actions have violated his constitutional rights and government separation of powers, as the Advance previously reported.