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Judge sides with Whitmer in emergency powers standoff with Legislature

Gov. Gretchen Whitmer
Gov. Gretchen Whitmer has drawn heat for accepting a flight on a private plane owned by businessmen and blowing past fundraising limits.

Michigan Gov. Gretchen Whitmer is legally allowed to extend a statewide state of emergency without the Legislature’s approval, a Court of Claims judge ruled Thursday. 

The ruling is likely not the end of the legal battle between Whitmer and GOP leaders in the House and Senate, as the case is expected to reach the state Supreme Court. 

But for now, the ruling means Whitmer can unilaterally declare a state of emergency — and extend or modify executive orders stemming from it, such as the stay-at-home order in response to the coronavirus pandemic.

The law that gives Whitmer the power to declare and extend emergency declarations without the input of the Legislature was “broadly constructed” and doesn’t conflict with another, subsequently-passed law that requires lawmakers get a say, wrote Judge Cynthia Stephens, 

However, there is another law that does require the Legislature’s approval to extend declarations of emergency. Whitmer employed that law unlawfully to end an existing state of emergency and begin a new one immediately afterward, Stephens wrote. 

Senate Majority Leader Mike Shirkey, R-Clarklake, pledged Thursday to appeal the decision, while  Speaker of the House Lee Chatfield, R-Levering, said he would “continue standing up for the rule of law.”

“While we are disappointed by aspects of this determination, we are vindicated in our assertion that the governor acted unlawfully in attempting to extend the states of emergency and disaster under the Emergency Management Act without legislative approval,” Shirkey said in a statement. “We are confident in our position and will appeal this ruling.”

Whitmer’s office said in a statement that the decision “recognizes that the governor’s actions to save lives are lawful” and that she will continue to “take careful, decisive actions to protect Michiganders from this unprecedented, global pandemic.”

House Democratic Leader Rep. Christine Greig, whose caucus submitted an amicus brief in the case in support of Whitmer, said the “ruling does not come as a surprise” and called the GOP’s suit “a waste of time and a waste of taxpayer dollars.”

The Republican-led state House and Senate sued Whitmer this month after she extended the state of emergency prompted by the coronavirus pandemic without their approval. 

Though they originally supported measures to restrict public movement to slow the virus’ spread in March, Whitmer issued a second, more stringent stay-at-home order in April that GOP leaders and several business groups said was overly restrictive and unnecessarily hurt the economy. 

They also argued that Whitmer was not including them in crucial decision making that affects residents across the state. 

When Whitmer asked the Legislature to extend her state of emergency under a 1976 law that requires lawmakers to approve emergency declarations every 28 days, they denied her request after she refused to agree to two one-week extensions.

She extended it anyway — once under the 1976 law with a new state of emergency and once under a 1945 law known as the Emergency Powers of the Governor Act that doesn’t require the Legislature’s sign-off. 

Lawyers for the Legislature argued that 1945 law was intended to apply to only local emergencies, as it was passed shortly after a Detroit race riot, gives her the power to act “within” the state rather than “throughout” it, and has references to areas and zones. 

If the law can be interpreted to give her unilateral power, it would be “a staggering abuse of power” and unconstitutional, they wrote

Whitmer’s attorneys contended the 1945 law gives the governor broad authority that isn’t limited to certain areas within the state and alleged that striking down her powers under the law — and therefore the emergency orders that exist under them — would “sow confusion” and “work grievous harm on the state and its citizens.”

Stephens decided the 1945 law is intended to allow the governor to implement states of emergency across Michigan without the Legislature’s approval, but noted it does have some limits on her powers.

The law said the emergency declaration and ensuing actions must be “reasonable” and “necessary,” which Stephens wrote are “historically proven” to be judicial standards by which people can bring lawsuits to check the governor’s actions.

The 1945 law and the 1976 one don’t conflict with one another because “while both statutes permit the Governor to declare an emergency, the EMA equips the Governor with more sophisticated tools and options at her disposal,” Stephens wrote. 

For example, the 1976 law allows health care workers to be shielded from liability for services performed in combatting the emergency.

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