Some in masks, Michigan lawmakers extend Whitmer authority amid coronavirus

Wearing an “Everybody Vs. COVID-19” T-shirt, Lt. Garlin Gilchrist presides over the Senate during a special session on Tuesday. (Courtesy photo)

LANSING — State lawmakers answered screening questions, had their temperature checked and some wore masks in the Michigan Capitol on Tuesday as they extended Democratic Gov. Gretchen Whitmer’s emergency authority to battle the coronavirus through April 30. 

Republican leaders implemented the unusual safety precautions in the midst of a global pandemic that has killed 727 Michigan residents as of Monday. Two state legislators have tested positive for COVID-19, and a third died of a suspected link to the infectious disease.

Whitmer wanted the Legislature to approve a longer extension of the expanded disaster declaration she signed April 1, requesting a 70-day extension from that date, which would have ensured her legal authority to unilaterally fight the crisis through June 10.

But GOP leaders argued that is too long for a rapidly developing situation. Lawmakers met to approve a shorter extension despite legal uncertainty over their authority, calls for remote voting, the state’s rising case count and administration projections the pandemic is weeks away from peaking in Michigan.

The 23-day resolution approved Tuesday does not lengthen Whitmer’s stay-home order or other executive mandates, but it gives her continued ability to revise orders or write new ones. The governor has indicated she will likely issue a modified stay-home order later this week, and Republicans are pushing her to consider new exemptions for some industries.

The Senate acted quickly, using a voice vote to approve the concurrent resolution once 20 of 28  members had checked in, giving them the quorum legally required to act. Only a handful of lawmakers were allowed on the floor at any one time. 

“Twenty-three days makes a bunch of sense to us because … our databases, our information and our ability to make decisions and assess actual circumstances is changing every day,” Senate Majority Leader Mike Shirkey, R-Clarklake, told reporters in a Zoom teleconference after the session. 

The Legislature may decide to extend Whitmer’s authority again later, Shirkey said, but Republicans feared a 70-day extension would send a message to the public that the stay-home order would last that long, “and we think that’s a very dangerous message to send,” he said.

Lt. Gov. Garlin Gilchrist, who wore an “Everybody Vs. COVID-19” shirt (but not a mask) at the rostrum, gaveled the Senate session to order at 10 a.m. Shirkey removed his mask to sing “It Is Well with My Soul” and read a passage from the Bible.

The Republican majority rejected a Democratic amendment to extend the emergency 70 days, as Whitmer had requested. The whole process, including a final vote conducted by voice, lasted 13 minutes.

I wish the extension was longer, but we will continue to keep moving forward and doing our jobs just like millions of Americans are being asked to do,” Senate Minority Leader Jim Ananich, D-Flint, said in a statement. “The coronavirus waits for no one, and that’s why Gov. Whitmer must be equipped with the full authority to respond to this pandemic quickly.”

The House session took much longer under safety protocols implemented by Speaker Lee Chatfield, R-Levering, who also did not wear a mask on the floor.

Members waited in their cars until they were summoned by text message to the House floor in groups of five. Attendance took nearly three hours as Chatfield awaited a quorum of 55 members to proceed with a voice vote. 

He did not take up a separate resolution proposed by House Minority Leader Christine Greig, D-Farmington Hills, that would allow legislators to participate in future sessions remotely using electronic and interactive technology during a state of emergency or disaster. 

“This is the time for the Legislature to lead, not shut down because we’re not using the communication tools designed just for this purpose,” Greig, who wore a mask she made herself, said in a statement after session. 

Chatfield referred the resolution to a committee without comment. He said Monday the Michigan Constitution does not allow remote voting — a position some experts dispute — and suggested technology and transparency concerns. 

“We certainly don’t want to allow that precedent to be started unless it’s done the right way,” he said. “We will be having those conversations.”

Legal debate

Whitmer on Monday questioned why legislative leaders would meet amid a pandemic to approve what she contends will amount to a one-day extension of her emergency authority. 

The governor last week rescinded her initial March 10 emergency declaration and replaced it with a broader emergency and disaster declaration. The administration argues the second declaration is now good for 28 days, and she was requesting an extension through June 10. 

“It really doesn’t make a whole lot of sense to come in just to extend for one day,” Whitmer said Monday. “I would hate for them to have to come back at the height of the crisis that we’re confronting.”

Whitmer’s initial emergency order would have expired Tuesday, and GOP leaders contend they had a responsibility to meet and extend it. 

Extending the emergency declaration through May 1 “will allow the governor to continue her important work while still giving local residents hope that they will have a real plan presented to them sooner than the end of June,” Chatfield said in a weekend letter.

Bridge Magazine spoke with two Michigan attorneys who were as split on those legal questions as the governor and GOP leaders. 

Whitmer “did issue a new state of disaster declaration, and if you follow 28 days from that, she’s right,” said Steve Liedel, an attorney who served as chief legal counsel under Democratic former Gov. Jennifer Granholm.

The Legislature can pass laws like the Emergency Management Act, but it’s up to the governor to interpret and execute those laws, he said.  “This notion that the clock started 28 days before the state of disaster was declared is inconsistent with the statute.”

But no lawyer could tell a judge with a “straight face” that Whitmer’s initial and expanded declarations arose from separate dangers or risks, said John Bursch, the state’s solicitor general under Republican former Attorney General Bill Schuette.

Bursch argued Whitmer’s second order did not reset the 28-day clock for legislative review. 

“At the conclusion of 28 days. the governor has a choice: either to declare the state of disaster terminated, or ask that the Legislature extend that,” Bursch said. “The governor lacks the power to unilaterally have a disaster emergency be in place for more than 28 days.” 

Without the kind of extension approved Tuesday, Bursch said residents or businesses impacted by Whitmer’s stay-at-home order could have standing to sue the state in court and challenge the governor’s continued authority. 

Experts disagree on whether Michigan law allows the Legislature to approve an extension that is shorter than the 70 days Whitmer initially requested. There’s also dispute over how much authority the governor has to act regardless. In her declarations, Whitmer has cited both the Emergency Management Act of 1976 and the Emergency Powers of the Governor law of 1945.

“It’s a good thing that [Whitmer and legislative leaders] both care about what the legal parameters of their authority are, and that they’re talking back and forth to try to work out a political way so there’s not a legal crisis,” Bursch said. “That’s the way this should work.” 

Economic concerns

Shirkey on Tuesday also announced formation of a new “safe behavior for safe workplaces” Senate workgroup that will develop recommendations for Whitmer on how and when to re-open businesses and industries forced to close amid the pandemic.

“This in no way is an indication that we think there should be a complete wholesale lifting of restrictions,” Shirkey said. “We think a home-work-home executive order and continuing to restrict unnecessary travel and unnecessary congregating is perfectly legitimate.”

Sen. Ken Horn, R-Frankenmuth, will lead the panel that will also include senators Wayne Schmidt, R-Traverse City; Curt VanderWall, R-Ludington; Stephanie Chang, D-Detroit; Sylvia Santana, D-Detroit; and Jeremy Moss, D-Southfield.

Shirkey advocated for a “surgical” approach to reopening businesses and suggested the need to do so in phases. A lawn mowing or landscaping company might be able to reopen soon and safety maintain social distancing, he said, but concerts at Ford Field in Detroit may be “way down the road.”

“We’re talking about finding that transition in the middle between those two,” he said. 

While health experts say the coronavirus spread is not limited by geographic borders, Chafield has urged the governor to “begin looking for ways where we can either regionalize our COVID-19 restrictions or ease back into normalcy through activities or work when it can be done within the CDC recommendations and guidelines.”

“The state of Michigan is diverse, and a one-size-fits-all approach to COVID-19 is not necessarily the best approach,” Chatfield said last week. 

Horn said the Senate workgroup will gather information from businesses, medical experts and constituents across Michigan to develop a plan on “how to get Michigan back to work where we can, when we can and in a safe manner.”

Whitmer has established her own economic advisory team, headed by DTE Energy CEO Gerry Anderson, to consider similar issues. 

Shirkey and Horn said they hope the Senate group supplements those efforts. They plan to share recommendations with Whitmer by April 17.

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Comments

Lame ducks
Tue, 04/07/2020 - 4:37pm

Legislature is just pretending to be relevant.

Lamer Ducks
Tue, 04/07/2020 - 6:29pm

Governor is just pretending like she has a 70 day plan.

No authoritative position needs unilateral abilities on a 70 day advance. 30 days at a time is completely adequate. This situation is evolving everyday no one can intelligently manage using a crystal ball. They will most like extend another 30 days a week or so prior to expiration. And if she has managed to successfully do her job and this all trends down in 30 days she doesn’t need executive privilege for an additional 40 days.

Goose
Wed, 04/08/2020 - 3:26pm

Many more of us would be dead ducks if we waited for the GOP legislature to do something, anything. They just think this would have passed, not caring about saving lives. Vote those selfish SOBs out!

***
Tue, 04/07/2020 - 5:14pm

There is going to be a lot of pressure to end this order on May 1. I'm not sure it will be the right time.

!
Wed, 04/08/2020 - 3:27pm

That's because you believe in science and vaccines, as you should.

!!!
Fri, 04/10/2020 - 8:31pm

I love it- you must "believe" in "science". Even though the 'scientists' have been horribly wrong on all the important aspects of this virus- their projects and models have been worth a pile of steaming crap in terms of accuracy, they don't have a clue what cures and treatments work, they're throwing around fatality rates that are widely different, and some of the top 'scientists' have been clearly been bought off by the Chinese government- and yet we must "believe" in them.

Hank Quayle
Tue, 04/07/2020 - 5:36pm

It's about time the Legislature met. They should have their pay cut for their failure to meet sooner. Laws come from the legislature, not the executive or judicial branches, and I'm sick of judges and governors trying to create laws that guide my behavior. Let my elected and accountable representatives decide these things, or those powers should return to the People at large for their exercise.

No to GOP
Wed, 04/08/2020 - 3:30pm

Elections are a luxury these days. Let's hope we don't get the Wisconsin treatment. We may have dodged the bulletin with the referendums in 2018. Phew

Hank Quayle
Thu, 04/09/2020 - 2:21pm

I can't tell if this is sarcasm or not? "Elections are a luxury" sounds like you are making a joke, but I know that some in the "no to GOP" camp actually believe that elections should be cancelled and unelected dictators should control my life, liberty, and property. So I can't be sure if you're joking or not.

Gerry
Wed, 04/08/2020 - 8:51am

Very easy to see who is in herd, as in herd mentality.

Anonymous
Wed, 04/08/2020 - 9:44am

Who's the editor for this article? Misspellings abound.

Anonymous
Wed, 04/08/2020 - 9:57am

Why did you wait too long for stay at home order?
WAS IT MONEY OR POLITICS?
YOU ARE NOW BLOODGUILTY IN GODS EYES FOR ALL THE DEATHS YOU HAVE CAUSED BY YOUR SELFISHNESS !!2timothy 3:1-5

Monday AM QB
Wed, 04/08/2020 - 3:31pm

Says Johnny come lately who resisted shutdown and still does!

David Fleet
Wed, 04/08/2020 - 10:21am

What about the stay-at-home order from the Governor; is that something she can only extend?

Jonah 212
Wed, 04/08/2020 - 10:47am

How many people did Senate and House members endanger on their trips from the UP to local? If stupidity there is stupidity, the Shirkey and Chatsfield are first class nominees for "
Stupid."

While the stay at home order from the Governor could use some tweaking, she has done a good job trying to keep Michiganders safe, healthy and alive though there is a toll on the State's economy. But...the number of deaths and the number sick from the virus is another toll on the economy and could be even more of a hit if the virus spreads like wildfire. Kudos to Governor Whitmer. Clearly she is not stupid as are the majority leaders of the Senate and House.

Child of God
Wed, 04/08/2020 - 3:33pm

Jonah 212, amen amen amen!

Jabba 424
Wed, 04/08/2020 - 6:18pm

Great question- they probably endangered zero people. It appears that Shirkley and Chatsfield are healthy and don't have the virus, and according to my sources they packed bag lunches and paid at the pump, so they did not spread the virus. I would think that it's stupid to think that the number is higher than zero. Look, I get it- all of this economics, political philosophy, civics, logical reasoning, and historical stuff is tricky- keep working at it though and someday you'll learn. :)

Betty
Thu, 04/16/2020 - 12:04am

Cause they dont trust you. Can you blame them