Gretchen Whitmer, GOP square off in court over Michigan emergency powers

Is Gretchen Whitmer using her just authority as governor to protect Michigan amid a once-in-a-century crisis or setting a dangerous precedent by illegally ignoring the Legislature?

That was the question before Court of Claims Judge Cynthia Stephens on Friday morning in a showdown between Whitmer and the GOP-led Legislature that could determine the powers of governors during state emergencies.

The case arose from disagreement between the Republican-led Legislature and the governor over how and when to loosen restrictions intended to curb the spread of the coronavirus, which has infected 49,582 and killed 4,787 people in Michigan since March 10.

Leaders in the Legislature supported Whitmer’s decisions in March to close schools, restaurants and most businesses. But when Whitmer signed a second stay-at-home order in early April with tougher restrictions on retail stores and travel without the Legislature’s consent, it sparked a debate over lawmakers’ role in setting statewide policies during emergencies.

Michael Williams, a Kalamazoo-based attorney who represented the House and Senate, argued Friday that governors have unchecked power if they don’t give the Legislature a say in when states of emergency end.

“It shows the need for some checks and balances,” Williams told Stephens during the hearing, which was conducted via Zoom and broadcast live on YouTube. 

“If a governor is really going to assert that degree of just generalized all-encompassing power, there needs to be some mechanism by which the people's legislators can say, ‘No, we're ready to take the reins.’”

Christopher Allen, the state’s assistant solicitor general who represented Whitmer, argued that the Legislature can influence policy by passing bills amid pandemics. He said the case should be dismissed because the Legislature doesn’t have legal standing to file suit.

He said Whitmer’s authority comes from two laws: A 1945 law that gives the governor emergency powers without legislative approval, and a 1976 law that requires the Legislature to approve emergency declarations every 28 days. 

Whitmer has used both laws. Two weeks ago, when the Legislature declined to extend her original emergency declaration by the length she requested, Whitmer ended her original 28-day emergency declaration and announced new ones under both the 1945 and 1976 laws.

That prompted disagreement over whether Whitmer has the power to end emergencies after 28 days and declare new ones on the same issue. 

Whitmer’s attorney argued the governor is still responsible for handling emergencies if the conditions that prompted it are ongoing, even if the Legislature doesn’t sign off on an extension.

There’s nothing in the law “about the governor's inability to continue responding if a disaster exists, and that's part of the absurdity here,” Allen told the judge.

The attorneys also debated whether the 1945 law, passed two years after a race riot in Detroit, was intended to address only local emergencies.  Whitmer says the law applies statewide; lawmakers contend it can only address local emergencies.

It’s not clear when Stephens will make a decision, though an appeal is likely, first before the state Court of Appeals and ultimately the state Supreme Court. As she signed off on arguments, Stephens told lawyers the case will likely “be on its way to my big bosses, the Supreme Court.”

Arthur Siegal, an Southfield-based attorney who specializes in governmental compliance laws, said that based on the judge’s questions, he believes she will issue a split decision that doesn’t satisfy either party, 

But if the Supreme Court upholds Whitmer’s use of the 1945 law, that would give Whitmer and other governors unilateral authority in emergency declarations unless private citizens challenge them in court, Siegal said.

Speaker of the House Lee Chatfield tweeted after the arguments concluded Friday that “the Legislature & people of Michigan were represented well.

“We should be choosing partnership over partisanship. That’s all we want,” he said.

The governor’s team did not immediately respond Friday to a request for comment.

Facts matter. Trust matters. Journalism matters.

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Comments

Lazy Legislature
Fri, 05/15/2020 - 2:38pm

"Christopher Allen, the state’s assistant solicitor general who represented Whitmer, argued that the Legislature can influence policy by passing bills amid pandemics. He said the case should be dismissed because the Legislature doesn’t have legal standing to file suit."

This begs the question, why didn't or doesn't the legislature send the governor legislation? Is it because she said she will veto it? Shame on them for not sending her legislation. It's not problem for her or the courts if the legislature does not make a law or clarify the existing laws.

Anonymous
Fri, 05/15/2020 - 10:49pm

That legislation was a joke, the CDC just came out with guidelines today and they are horrible, edited by the incompetent president who says the governors are in control, but then whack the governors in the kneecaps. Why is there nothing about testing in the guidelines?

Anonymous
Sat, 05/16/2020 - 12:52pm

Some would argue to say also this concerns, as you also stated your descriptive opinion of President Trump... this action is due to an incompetent governor!

Mark
Sat, 05/16/2020 - 11:43pm

I would prefer to call it, a over reaching Republican legislature. I don't believe for one minute that Michigan Republicans want partnership with the Governor. They will continue to try bullying her. What Michigan Republicans don't realize is they are sending the truly wrong message to anyone who is not a hardcore Trumper. They demand we respect their President as they mock and belittle our chose ff Governor. Knowing we can win state wide will send more to the polls or absent mail in ballots. The time for watching Trump say, Hold beer watch this, is over.

Anonymous
Sat, 05/16/2020 - 12:18am

That fact doesn't fit my narrative, so I am going to ignore it.

Emergency for Leader
Fri, 05/15/2020 - 2:44pm

So both sides agree that there is a legitimate emergency and one side wants to handle it alone while the other side wants everyone to have a say. Hmm, my parents always said, "Too many chiefs and not enough Indians." How do you manage an emergency with a legislature? You need a commander in chief. As far as limitations to that power, draft a law that outlines exactly what those powers should be. Otherwise, you look silly. The truth is that the legislature isn't really doing it's job. I don't think they have standing in this case, as long as they agree we are in a state of emergency still. They want to have their cake and eat it too.

Anonymous
Fri, 05/15/2020 - 4:14pm

I'm sorry, between your references to chiefs, Indians, commanders, drafts, silliness, jobs, and cake, I lost track of your point. As I understand it, you've lost your kitten?

Anonymous
Fri, 05/15/2020 - 10:52pm

To sum up, the legislature is useless and just wants to pretend to be doing something. They wanted the governor to come talk with them every 14 days? For what? They gave her no useful guidance or funding at all to succeed in this national emergency.

Walter Smitty
Sat, 05/16/2020 - 9:45am

Put your mask back on, Anonymous. If you go around saying that the legislature is useless and the executive should have dictatorial powers with no checks on her by elected representatives, people are going to recognize that you really are an authoritarian. Go back to pretending that you care about democracy and popular sovereignty. The modern-day Democratic Party still needs to pretend to care about workers, privacy, liberty, jobs, checks and balances, and transparency, so put your mask back on before people see that it doesn't.

Red
Sat, 05/16/2020 - 7:23pm

What is the governor, if not an elected representative for the people?

Bobby Joe
Sun, 05/17/2020 - 11:01am

The Governor is the head of the executive branch, and has the job of executing the laws. Representatives are representatives of the people, elected to the Legislature to put in place legislation (rules, dictates, laws, policies, etc). The judicial branch rules on whether people broke the laws of the legislature or not (and also settles disputes when the law is vague). This is separation of powers 101, taught in any high school government class. Did they not teach this to you in China?

Missing Something
Fri, 05/15/2020 - 2:50pm

What does the legislature want the governor to do? Whatever they say? How so, by conversations, telepathy, laws? What do they want to do? They seem to be just trying to show they are victims. They look really weak and, to be honest, scary because they aren't proposing anything. Regional openings of the economy? How will that work when colleges and universities open in the fall and students from all over the world will be moving in and out of regions? You have to be very very rural not to be affected by in-person classes in our state.

Doby Joe
Fri, 05/15/2020 - 4:18pm

I think the Legislature wants the Governor to run the Executive branch and implement the laws of the legislature- you know, what she is supposed to do. It isn't a partisan thing either- the Executive shouldn't be issuing dictates, declarations, rules, laws, or anything of the sort- they are not provided with legislative power except in certain clearly established circumstances.

It's cool though- I look forward to the next Republican declaring an 'emergency' on day one and then running the state however they want for the next 8 years, and you Democrats coming on here and baaing like the sheep you are. At least if that happened, less people would die and more people would have jobs when compared to Whitmer.

Anonymous
Fri, 05/15/2020 - 10:56pm

All they said was they want her to open the economy with businesses promising to take this seriously, no consequence if they don't. They are useless, telling her to follow CDC guidelines that weren't even out yet, guidelines that are useless, no mention about testing, providing funding. Until the legislature acts maturely, most people in Michigan respect, appreciate, and most of all trust the governor to get us through this emergency. She is the equivalent of our commander in chief. Get used to it.

Dan
Sat, 05/16/2020 - 10:44pm

Don’t assume most people respect, appreciate or trust the gov. I don’t care what party anyone is and have lost a ton of respect for her through this. There has to be checks and balances for all government. All lives are important but her always negative treating people like kids is sad. And her wearing a stupid “woman from Michigan” shirt on TV and tweeting back at Trump just make her a typical politician that can’t stay above the crap

Simply Rural
Sun, 05/17/2020 - 7:03am

Not where I live. Everyone is “hot under the collar” about being under shelter in orders. Not receiving their unemployment yet (many have been approved but still haven’t received money!), can’t get help from DHHS, but still need food for their kids& pay bills. & the order may have included no one can be kicked out of their home during this time, but what happens after the order ends, jobs are now permanently gone because the businesses they worked for couldn’t make it through the shutdown? They will be homeless eventually because there will be no jobs to provide for their families. Are you willing to share what you have with those who are right now & will be in this state of financial loss once we are out of danger? Many are looking only at their small circle they live in.

Anonymous
Fri, 05/15/2020 - 11:56pm

Your question makes me think of something related to travel. If the virus first showed up in China in November, why did it take 3-4 months to "escape"? By your logic, the entire world should have been infected by December. Oh wait, maybe it was. Except, that would render all of these measures completely useless, since we didn't "flatten the curve" until 3 months in. It's like a solution looking for a problem.

Mark
Sun, 05/17/2020 - 1:49pm

The point of Michigan Republican planned interference is pretty dire right now because Governor Whitmer did not let the Republicans play their artful game of, your to blame for everything while we sportscast it for your supporters. Remind me never to get in a fox hole with any of these Liberty freaks, they will be screaming for the enemy to come kill us, because, its their right to. If anyone in Michigan knows the absolute fools in our Legislature I believe Governor Whitmer knows who to avoid like the baby chatter box..

middle of the mit
Fri, 05/15/2020 - 8:48pm

I am going to make a prediction. I haven't looked far and wide, but I don't think that I have seen a republican idea for dealing with the virus other than open up sections at a time. Those areas with less COVID cases should open up.

And we are. Trust me. What will they do if cases in their districts start spiking? Will they ask for them to close down?

What will they do if they win the case against the Governor? And everything opens up?

I will tell you what they will do. Listening to a radio station today out of Wisconsin, I was informed that the legislators left it up to local officials.

So I found it for you.

https://abcnews.go.com/Health/wireStory/court-ruling-opening-wisconsin-b...

MADISON, Wis. -- Wisconsin may leave a patchwork of local policies in place for combating the coronavirus pandemic after the state Supreme Court tossed out the Democratic governor’s stay-at-home order, a Republican legislative leader said Thursday.

The court order threw communities into chaos, with some bars opening immediately while local leaders in other areas moved to keep strict restrictions in place to prevent further spread of the virus.//////

The problem is that the Republicans didn't have a plan for the virus after they won their court case. Want to take bets our Republicans don't either?

/////“We already know that local health departments have the ability to utilize their power, which is already there to deal with those situations if they feel it’s unsafe,” Vos said. “So we don’t necessarily need a statewide approach.”/////

As long as it is not done by the Governor!!!! A Democrat!

The question is ; Will State citizens who have homes in other counties abide by the leaders and law officials in those counties? If they don't want to listen to the Governor and Republican State officials are encouraging them not to, why should they listen to my township officials? They aren't right now, even though most officials in Northern Michigan are asking people not to come up.

Anarchy here we come!

Republicans REFUSE to govern, they REFUSE to allow the Governor to Govern and they are now putting the blame on local leaders.

Hey local leaders?

How do you like State GOP leadership?

According to the President.......Don't test and you won't have a problem.

https://www.youtube.com/watch?v=UyGGBw3KjVU

It's only 25 seconds.

https://www.youtube.com/watch?v=hIyAi-Mzu0g

Here is the context, but you will need to go into the video about 3-4 minutes in.

Seems as though we have found a way to get rid of CORONA virus without actually getting rid of it!!

TRUst Me People!

deblojo13
Sat, 05/16/2020 - 12:46pm

It's time to take the state of Michigan back for the people and and give them their rights and freedom back. Excessive Quarantine in the way it was enforced was unconstitutional and abuse of power from a government official who should be working with the people, for the people. This should be for ALL the Michiganders, not just some of the people and large corporations!
Let's take our Civil liberties back from the Governor! She completely overstepped her position as a true leader of ALL Michiganders, so that this may never happen again...by a government official in authority position . Government Politicans should remain public servants not public tyrants!

Winston
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Bobby S
Sat, 05/16/2020 - 12:57pm

After reading thru the story & comments it never ceases to amaze me how democrats hate the idea of having to think for themselves and enjoy the freedom to live and enjoy others living in freedom. They love being slaves to dictators (like Whitmer) that are incompetent democrat (communist) hacks that have never so much as run a lemonade stand and now feel they can yield complete and unaccountable power over everyone. The commenters here love being (democrat) mushrooms. You really have to feel sorry for them for being so dumb but than again it might be in their DNA?

VeeMann
Sat, 05/16/2020 - 5:58pm

Amen!!

OPEN UP
Sat, 05/16/2020 - 3:04pm

The virus has already spread. There is no containing it. If people don't want to coverup there welcome to get sick. People need to work and get payed. We don't need be controlled by someone how is being payed by us.

Todd
Sat, 05/16/2020 - 7:21pm

That judge had her mind made up before she even flipped on her monitor. You can just look at her without her saying a word and know that she'll be siding with democrats.

Paul Jordan
Sat, 05/16/2020 - 9:03pm

To me, this case sounds a lot like when one of my daughters would complain to me to try to get me to punish the other one.

Everybody needs to put on their big girl/boy pants to deal with the terrible situation that confronts us. We need and have one person in ultimate charge, and that is Governor Whitmer by virtue of her position. She needs to confer with the legislative leadership of both parties because she needs the state's entire power structure behind her.

But she is in charge.

Richard M
Sun, 05/17/2020 - 9:30am

There are two sides to everything. It's inappropriate that the governor call having the courts decide a 'constitutional crisis'. She's not empress of Michigan. There are also two sides to COVID-19. Thousands are people are dying. Perhaps fewer will die if there is a quarantine. On the other hand, the economic impact of quarantine will be much more damaging to the great majority of people than having COVID-19 would have been.

LH
Sun, 05/17/2020 - 12:57pm

Agreed! The governor's plan refers to regions and phases, but her orders continue to apply statewide with no difference between the regions. What's good for Detroit is not necessarily what's best for the UP, for example. When Bridge published a very helpful series of charts showing the data regarding hospital occupancy, trends in number of cases and deaths, etc., along with a description of the various phases, it was clear to me and other readers (based on the comments) that statewide we are in phase four, not just entering phase three, as the governor says we are. https://www.bridgemi.com/michigan-government/whitmer-reopens-michigan-co.... Then Bridge did some fact-checking on the rhetoric from both sides https://www.bridgemi.com/michigan-government/michigan-governor-gop-leade.... The first instance in the article was Dr. Joneigh Khaldun saying many rural hospitals are at capacity, when in fact, none were even close. This administration says they are relying on facts and science, but they can't get their facts straight, and there is precious little science to go on. This virus is so different from others, and affects people in so many different ways, that doctors, researchers, and government officials have to do the best they can while trying to figure out what the "science" is. It's valid to question the sincerity of Republican leaders who say they just want to work with the governor, but I haven't seen any interest, sincere or not, from the administration, to even try. What I see are threats and punitive action, for example, if you protest we'll just have to extend the stay home order longer. Our businesses are struggling, people need to get back to work, and the longer local businesses are shut down, the more we'll get in the habit of relying on Amazon and the big boxes for stuff we could buy locally from our friends and neighbors. Yes, we need to be sensible about how it's done, but we must try re-opening the economy in regions where it makes sense to do so, and we must do it NOW!

LH
Sun, 05/17/2020 - 3:49pm

Agreed! The governor's plan refers to regions and phases, but her orders continue to apply statewide with no difference between the regions. What's good for Detroit is not necessarily what's best for the UP, for example. When Bridge published a very helpful series of charts showing the data regarding hospital occupancy, trends in number of cases and deaths, etc., along with a description of the various phases, it was clear to me and other readers (based on the comments) that statewide we are in phase four, not just entering phase three, as the governor says we are. https://www.bridgemi.com/michigan-government/whitmer-reopens-michigan-co.... Then Bridge did some fact-checking on the rhetoric from both sides https://www.bridgemi.com/michigan-government/michigan-governor-gop-leade.... The first instance in the article was Dr. Joneigh Khaldun saying many rural hospitals are at capacity, when in fact, none were even close. This administration says they are relying on facts and science, but they can't get their facts straight, and there is precious little science to go on. This virus is so different from others, and affects people in so many different ways, that doctors, researchers, and government officials have to do the best they can while trying to figure out what the "science" is. It's valid to question the sincerity of Republican leaders who say they just want to work with the governor, but I haven't seen any interest, sincere or not, from the administration, to even try. What I see are threats and punitive action, for example, if you protest we'll just have to extend the stay home order longer. Our businesses are struggling, people need to get back to work, and the longer local businesses are shut down, the more we'll get in the habit of relying on Amazon and the big boxes for stuff we could buy locally from our friends and neighbors. Yes, we need to be sensible about how it's done, but we must try re-opening the economy in regions where it makes sense to do so, and we must do it NOW!

Carl Holmes
Sun, 05/17/2020 - 11:47pm

Prediction- Halfwhit will continue to issue vague rules and minor adjustments and form up commissions that do nothing, until in a 5-4 decision the MI Supreme Court rules against her power grab and the Legislature then opens up the economy. Every death that happens 'due to COVID' after that will be blamed on the GOP. Remember, Governor Whitmer always plays the role of the victim and pretends to be powerless to do anything good, all while awarding taxpayer money and political power to her supporters and allies. This is all too predictable.

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