Judge: Whitmer-Legislature lawsuit likely heading to Mich. Supreme Court

Gov. Gretchen Whitmer gives an update on COVID-19, March 18, 2020 | Susan J. Demas

Oral arguments took place Friday for a lawsuit brought against Democratic Gov. Gretchen Whitmer by Michigan GOP lawmakers, who argue Whitmer’s authority to extend pandemic-related state of emergencies without the state Legislature’s approval is unconstitutional.

Judge Cynthia Stephens heard the case, which was filed in the Michigan Court of Claims last week. Arguments were presented over Zoom software and streamed to the public via YouTube. 

The substance of the case surrounds Whitmer’s invoking of two key acts to manage the COVID-19 pandemic. GOP lawmakers argue the governor should not have the authority to extend a state of emergency in Michigan beyond an initial 28 days without the Legislature’s approval. 

Whitmer extended her emergency declaration beyond April 30 to May 28 — via executive orders 2020-67 and 2020-68 — despite the Legislature’s attempts to let it expire. On May 6, Michigan House Speaker Lee Chatfield (R-Levering) and state Senate Majority Leader Mike Shirkey (R-Clarklake) announced the Legislature filing the lawsuit. However, Democratic caucuses have sided with Whitmer.

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Whitmer claims authority to issue those orders under the Emergency Management Act of 1976 (EMA) and Emergency Powers of Governor Act of 1945 (EPGA). GOP lawmakers desire a ruling in their favor in order to strike her EOs down in order to more quickly reopen the economy.

Assistant Solicitor General Christopher Allen, who represents Whitmer, argued the Legislature lacks an institutional injury in the matter. He added that “[the governor’s] duty persists” in taking action to resolve COVID-19 public health crisis. 

“There’s no disruption to that body’s specific power to legislate,” Allen said. “The plaintiffs only seek to withhold the governor from doing something. Their full ability to continue to act remains.”

Michigan has almost 50,000 COVID-19 cases and more than 4,700 deaths, as of Thursday.

But Michael Williams — an attorney from the Troy-based law firm Bush Seyferth PLLC representing the Legislature — reiterated his clients’ claims that the governor is “depriving” the legislative body of tools to assist in pandemic management.

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“We are contending that the executive has actually seized the exercise of power that would ordinarily be reserved to the Legislature itself,” Williams said. “This is not just about whether we agree with the manner in which a law has been executed.”

Here’s the crux of the matter: The 1976 law says the Legislature can have input after an initial 28 days. But the 1945 law says a governor maintains authority to decide when to declare a state of emergency over and doesn’t note a timeline for when the Legislature can step in.  

Stephens, who was appointed to the Michigan First District Court of Appeals by Democratic former Gov. Jennifer Granholm, spent a portion of 83-minute questioning both attorneys on their arguments about the two laws. 

“Your perspective would be, so long as the governor perceives there to be an emergency, the governor is free, every 28 days, to terminate one emergency and declare an identical emergency to have begun the next day, and that’s entirely valid under the EMA?” Stephens asked Allen.

Yes, Allen said, per the 1976 law’s plain statutory language.

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Stephens asked what would stop a governor from declaring a state of emergency for an entire term of office. Allen said the governor can’t declare one whenever she feels like it.

“Why not? Who could do anything about it?” Stephens responded. 

The 1945 law states a governor can issue orders and regulations to protect life and property, Stephens said. Williams argued the Legislature is not looking to invalidate its passed laws, but this one is being applied too broadly in this case.

“This is an as-applied challenge,” Williams said. “It’s the governor’s broad construction of the statute, not the Legislature’s passage of that statute that poses the constitutional problems in this case.”

“I still don’t think you want to say as-applied,” Stephens told him. “I think you want to tell me the EPGA is being applied in a legally inconsistent manner that you can see on its face.”

At the close of the hearing, Stephens said she would review the transcript of the arguments before she made her decision. She expects the case to go before the Michigan Supreme Court.

“You will obviously get something in writing, which will certainly not be the last word,” Stephens said. “It’ll be on its way to my big bosses, the Supreme Court.”