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Michigan lawmakers repeal Whitmer powers months after court overturned them

The state Supreme Court already overturned the Emergency Powers of the Governor Act of 1945, but a full repeal of the law means future courts can’t change their minds. (Bridge file photo)

July 26: After limiting Whitmer powers, Unlock Michigan now targets local health orders

LANSING— Michigan governors will no longer have the authority to use a 1945 law that gave them expanded powers during public crises or emergencies.

On Wednesday, the Republican-led House voted 60-48 to adopt a petition brought through a citizen petition drive to repeal the Emergency Powers of the Governor Act. Democratic Gov. Gretchen Whitmer used the law last year to issue public health orders until the Michigan Supreme Court found it unconstitutional in October.

Rep. Jack O’Malley,R-Lake Ann, said the act — which was created in response to 1945 race riots in Detroit — was never intended to address long-term, statewide pandemics. He said the Legislature wanted to work with the governor during the coronavirus crisis, but she ignored them. 

“I understand this was a fast-moving situation and the governor was in a rough spot having to respond to something that was killing over 3,000 Americans every day,” O’Malley said from the House floor. 

“So, here we are, acting in a constitutional fashion to defend this state from any future governor regardless of their political affiliation.”


Four Democrats voted to repeal: Reps. Sara Cambensy of Marquette, Tim Sneller of Burton, Richard Steenland of Roseville and Karen Whitsett of Detroit.

The repeal will take effect in 2022, following the Republican-led Senate’s approval of the proposal last week.

Whitmer cited the 1945 act to limit crowd gatherings, implement mask mandates and close certain establishments after lawmakers refused to extend Whitmer’s emergency state of emergency declaration on April 30, 2020.

“This is about letting the people of Michigan know that no longer will a governor be allowed to use a loophole to rule over the state unilaterally and indefinitely,” said Rep. Sarah Lightner, R-Springport.

Whitmer’s office declined to comment, but Rep. Julie Rogers, D-Kalamazoo, defended the use of the law during the pandemic.

“This is not a rogue governor following her own rules,” Rogers said. “She was following a statute that was written and was only recently decided on by the Supreme Court,” Rogers said.

Michigan Democratic Party Chair Lavora Barnes said in a statement that the repeal “hamstrings any administration's ability to respond swiftly to deadly global health pandemics.”

The state Legislature repealed the law by utilizing a rare mechanism that allows lawmakers to enact citizens’ petitions without a governor’s signature or a statewide vote.

The petition passed Wednesday was brought up by Unlock Michigan after it collected more than 460,000 sufficient signatures to do away with the emergency powers law, which states that during a public crisis or disaster “the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control.”

But the petition experienced some roadblocks before getting to the Legislature.

In April, state canvassers failed to certify the petition after the two Democrats voted against it, even when the Board of Canvassers deemed the signatures as sufficient. 

In June, the Michigan Supreme Court ruled that the petition needed to be certified. 

Fred Wszolek, a spokesperson for Unlock Michigan, told Bridge Michigan in an email that lawmakers completed “their mission with a final vote in the Legislature to end Governor Whitmer's rule by decree.”

He said the group’s next priority is to reform public health laws that allowed Whitmer’s administration to issue orders following the Supreme Court ruling by citing a separate 1978 law.

Unlock Michigan is preparing a second petition drive to limit those orders to 28 days, unless extended by the Legislature.

“Don't bet against our success there either,” Wszolek said.

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