LANSING — Michigan Gov. Gretchen Whitmer said Wednesday she will not negotiate future stay-at-home orders with the Republican-led Legislature, despite pressure to speed plans to restart an economy she locked down to slow the coronavirus.
With tensions high at the Michigan Capitol, the Whitmer administration took the rare step of disclosing an internal email exchange with a top aide to Senate Majority Leader Mike Shirkey, who proposed extending an emergency declaration set to expire Friday by up to two weeks in exchange for a public promise by the governor to work with lawmakers on future orders.
The first-term Democrat, who has requested a 28-day extension, rejected the offer and told GOP leaders she believes she has the authority to continue emergency actions with or without their blessing.
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"Michigan remains in a state of emergency regardless of the actions you decide to take or not take,” Whitmer said in a response also released to reporters by her communications director.
Shirkey was “extremely disappointed that he heard about the governor’s rejection based on her leaking an email to the press,” said spokesperson Amber McCann. “If there was any interest in his caucus working with the governor, it has evaporated.”
In an interview with MIRS subscription news, Shirkey, R-Clarklake, suggested Whitmer is “comfortable being a dictator” and called the email release a “double middle finger” from the administration.
Shirkey and House Speaker Lee Chatfield, R-Levering, want a seat at the table as Whitmer finalizes her economic restart plan with a team of business and public health advisers.
Republicans argue the Legislature is an equal branch of government and lawmakers should have a say in the state’s response to the global pandemic. GOP leaders want the governor to continue relaxing rules for businesses and contend she needs their approval to take emergency actions beyond Thursday.
But Whitmer maintains she can continue to act unilaterally under a 1945 law that does not require legislative approval, a measure Senate Republicans voted to repeal last week in a symbolic move.
“Republicans in the Legislature want to negotiate opening up sectors of our economy,” Whitmer said later Wednesday in a COVID-19 briefing.
“They're acting as though we're in the midst of a political problem. This is not a political problem that we have. This is a public health crisis. This is a global pandemic. We've already lost over 3,700 Michiganders, more than we lost in Vietnam.”
Whitmer, who previewed her “MI Safe Start” plan on Monday and has promised to put the construction industry back to work by May 7, said she'll make decisions "based on facts and science and data and risk." She has not offered a timeline for other industries that will reopen in phases depending on region and workplace type.
Lawmakers met in Lansing on Wednesday but took little action in a lengthy session that was interrupted by anti-Whitmer protesters. At least one demonstrator was reportedly wheeled out on a stretcher after forced removal by House sergeants.
Rep. Jason Sheppard, R-Temperance, blasted Whitmer in a Wednesday afternoon statement after negotiations with GOP leaders fell apart.
“She’s not so much a governor as she is a minority leader who won an election,” Sheppard said, describing what he called “failures” at the Unemployment Insurance Agency, where there have been long wait times for the state’s 1 million unemployed workers, as well as a concerns over a volunteer contact tracing contract awarded to a firm with Democratic ties that Whitmer quickly rescinded.
House Minority Leader Christine Greig, D-Farmington Hills, accused Republicans of playing partisan games amid the public health crisis.
“The Legislature has important work to do,” she said in a statement. “We must focus on responding to this deadly pandemic and tackling a looming state budget crisis, rather than waste precious time trying to inhibit the governor’s ability to take steps necessary to protect and save lives during an emergency.”
The House plans to meet again Thursday to “continue negotiating for common-sense changes to help families who are struggling during this pandemic,” said Gideon D’Assandro, a spokesman for Chatfield and the GOP caucus.
“Thousands of people have reached out to their state representatives because they’ve been hurt by executive orders that go too far and make unfair one-size-fits-all decisions,” D’Assandro said.
“Strong action is needed to combat this pandemic, but Michigan’s response has been a national outlier for the amount of harm it has caused and the amount of confusion and uncertainty it has created.”
‘Freedom to make our own choices’
Critics contend the governor went too far with her lockdown orders and has not eased rules fast enough as the state’s coronavirus curve has appeared to flatten. Michigan has so far confirmed 40,399 cases of COVID-19 and 3,670 related deaths since March 10, including 1,137 additional cases and 103 deaths announced Wednesday.
Whitmer’s orders are “unprecedented” and violate the rights of business owners forced to close, according to a federal lawsuit filed Tuesday on behalf of Sotheby’s real estate firm in Birmingham, EPM landscaping of Ann Arbor, the Intraco exporting firm of Troy and its subsidiary Casite, along with Hillsdale Jewelers in Hillsdale.
“For the first time in our State’s history—indeed, in our nation’s history—the State government is mass quarantining healthy people instead of the sick,” attorneys with the Butzel Long law firm wrote in a complaint filed to the U.S. District Court in Grand Rapids.
“As a free people, we have the unalienable right to pursue happiness, which includes the freedom to make our own choices about our safety and welfare without unconstitutional interference.”
The suit contends Whitmer’s orders, legal under state law, violate business owners’ federal right to engage in interstate commerce. Hillsdale Jewelers, for instance, has lost almost all its business — a 99 percent drop in revenue — because it can no longer import metals and stones used to make jewelry, sell products in store or perform repairs, attorneys claim.
“In short, plaintiffs bring this lawsuit to define the limits of a state’s police power,” the complaint said, noting stay-home order violators can face misdemeanor penalties of up to 90 days in jail and a fine of up to $500.
Whitmer’s office declined to discuss the suit, citing a policy of not commenting on pending litigation.
It’s the latest in a slew of lawsuits against the administration in the midst of the pandemic, including complaints over Whitmer’s decisions to close landscaping businesses and prohibit motor boating.
She has since reversed some of those policies but contends they saved lives.
Whitmer prevailed in one state case Wednesday when Court of Claims Judge Christopher Murray rejected a motion to suspend her stay-at-home order in a lawsuit filed by five Michigan residents who claim the governor violated their due process rights.
Murray, who previously served as deputy legal counsel to Republican former Gov. John Engler, said Whitmer acted within her authority and that suspending the order would not serve the public interest.
“Although the Court is painfully aware of the difficulties of living under the restrictions of these executive orders, those difficulties are temporary, while to those who contract the virus and cannot recover (and to their family members and friends), it is all too permanent,” he wrote.
Attorney General Dana Nessel applauded the ruling, which her office called the first “substantive” decision on the constitutionality of the governor’s stay-home orders.
“This pandemic has already taken more than 3,600 lives in Michigan and many more around the world,” Nessel said in a statement. “The primary goal of the Stay Home, Stay Safe order has always been to protect human life.”
Pressure for U.S. attorney general
The governor is facing growing pressure — and potential legal action — from both the federal government and the state Legislature.
U.S. Attorney General Bill Barr on Monday announced a new effort to monitor state and local directives “that could be violating the constitutional rights and civil liberties of individual citizens.”
The order is not specific to Michigan, but Barr drafted U.S. Attorney Matthew Schneider of the Eastern District of Michigan to help oversee the project.
Schneider and Assistant Attorney General for Civil Rights Eric Drieband will monitor state and local policies and, “if necessary, take action to correct them,” Barr said in a memo.
“We do not want to unduly interfere with the important efforts of state and local officials to protect the public,” he wrote. “But the Constitution is not suspended in times of crisis. We must therefore be vigilant to ensure its protections are preserved.”
In a Tuesday morning radio interview on WILS, Chatfield called Barr’s memo a “clear message,” not just to Whitmer, but to leaders across the country.
He said that without negotiated changes to Whitmer’s stay-home order, the GOP-led Legislature may not extend the separate emergency declaration set to expire Friday.
Whitmer said her order, set to last through May 15, will remain in effect regardless. But a legislative extension would continue to protect health care workers from any legal liability they may face for services performed at the state’s request.
“It could be something that the judicial branch needs to get involved in, so we’re prepared for that,” Chatfield told MLive.com Tuesday.
GOP leaders have not spelled out their wish list, but Senate Republicans on Tuesday adopted a resolution urging the governor to allow health care providers to resume elective surgeries she put on hold last month.
Giving hospitals “the freedom to determine their capacity to handle elective procedures,” is a key step in improving the financial stability of hospitals, said the resolution, sponsored by Sen. Lana Theis, R-Brighton.
In her Wednesday briefing, Whitmer said she is considering changes to her March 20 order prohibiting non-essential medical procedures but drew a distinction between time-sensitive medical care like cancer treatments, “non-urgent” care like hip replacements and “truly elective” cosmetic surgeries.
“We’ve been having intensive conversations with our public health experts as well as our leadership in our various hospitals systems, and I do think there is going to be something in the coming days on that front,” the governor said.
The House on Wednesday unanimously approved separate legislation that would require hospitals to notify first responders if a patient they transported later tests positive for COVID-19.
A new oversight committee established with subpoena power to review Whitmer’s handling of the pandemic also met for the first time in Lansing.
“The crisis has cost lives, jobs and it will cost our economy and government budgets billions of dollars,” Sen. Aric Nesbitt, R-Lawton, suggesting the oversight process will help Michigan identify what has and has not worked so far.
“We have a responsibility to develop the best Michigan model possible for handling this crisis — and the next one,” he said. “Hopefully there isn’t a next one, but in the course of human events, pandemics happen, and we need to be prepared better.”
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