Whitmer: GOP lawsuit adds a ‘constitutional crisis’ to coronavirus crisis

The end of the beginning of the ongoing pandemic is not the end of the governor’s authority to protect the health and safety of everyone in Michigan,” attorneys representing Whitmer said Tuesday in a Court of Claims filing. (File photo courtesy of the governor's office)

LANSING—Michigan’s Republican-led Legislature is attempting to “build a constitutional crisis atop a public health crisis” by challenging Gov. Gretchen Whitmer’s emergency authority during the coronavirus pandemic, her attorneys said Tuesday in a court filing. 

The first-term Democrat is asking Court of Claims Judge Cynthia Stephens to reject a lawsuit from the Legislature, which alleges Whitmer violated state law and the Michigan Constitution by issuing new emergency declarations after the GOP majority refused to extend a prior version. 

Legislative leaders are asking the court to declare Whitmer’s executive orders, including her stay-at-home and business closure mandates, “invalid and unenforceable.”

But doing so would “sow confusion,” undermine public health and “work grievous harm on the state and its citizens,” Assistant Solicitor General Christopher Allen said in a new court filing

“The end of the beginning of the ongoing pandemic is not the end of the governor’s authority to protect the health and safety of everyone in Michigan,” he wrote. 

Stephens, appointed to the bench by Democratic Gov. Gretchen Whitmer, has fast-tracked the case by scheduling oral arguments for Friday. Experts say the suit, which tests the limits of a governor’s emergency powers, may eventually end up before the Michigan Supreme Court. 

Allen and other lawyers from Attorney General Dana Nessel’s office who are representing Whitmer in the case argue the Legislature does not have legal “standing” to challenge her emergency declarations. And they contend the Legislature cannot claim direct harm from her actions because lawmakers can, and have continued to, pass bills in response to the pandemic. 

Whitmer two weeks ago issued new emergency declarations under both a 1945 law that does not require legislative approval and a 1976 version that requires a legislative extension every 28 days. Her legal team concludes she followed the law by terminating earlier declarations to issue new ones. 

The emergency laws show past Legislatures “have thought better of putting a slow and fractious multi-member body in charge of responding to public health emergencies that demand a rapid, coordinated, and nimble response,” Allen wrote. 

If legislators don’t like the statutes, they can change them rather than asking the court to “referee this political disagreement and do their legislative work for them,” he added.

Whitmer has vowed to veto any legislation curtailing her emergency authority, but Allen noted the Legislature could override a veto with a two-thirds majority vote. That appears unlikely, however. Republicans do not have supermajorities in either the House or Senate, and House Democrats on Tuesday filed their own legal brief supporting the governor’s position. 

Senate Majority Leader Mike Shirkey, R-Clarklake, has floated the possibility of a petition drive to repeal the 1945 law, and Republican Congressman Paul MItchell of Dryden has formed a ballot committee that could lead that effort. Mitchell has also filed his own lawsuit challenging Whitmer’s emergency orders. 

The Legislature’s lawsuit alleges that Whitmer’s move to extend her emergency authority without legislative approval is illegal, “absurd,” unconstitutional and “nonsensical.”

Shirkey and House Speaker Lee Chatfield, R-Levering, claim the governor has ignored their input on plans to re-open the economy, which they have pushed her to do at a faster pace.  GOP leaders have called Whitmer’s executive orders, including her stay-at-home mandate, “legally questionable” but have so far shied away from describing the legal dispute as a “constitutional crisis.”

“You guys are experts at putting headlines on things, and so I’m not going to opine on limiting your ability to do so,” Shirkey told reporters last week. 

The Legislature’s complaint contends Whitmer violated the 1976 emergency law and, by continuing to issue and enforce executive orders, has also violated the separation of powers clause of the Michigan Constitution and encroached on legislative authority by effectively passing laws on her own. 

The 1945 law that does not require legislative extensions was designed for responses to local emergencies, not the kind of statewide emergency Whitmer continues to cite in her response to COVID-19, attorneys for the Legislature said last week. That statute gives Whitmer the authority to act “within” the state, not “throughout” it, they said, noting the law references areas, zones and sections that appear consistent with a localized response.

Allowing Whitmer to proceed without legislative approval would place “no meaningful limits on the governor’s power at all” and is therefore “nonsensical,” according to the complaint. And letting her simply issue a new declaration every four weeks would produce “absurd results.”

But the Republican lawmakers’ lawsuit amounts to a “power grab cloaked in the fineries of unfounded legal reasoning,” Allen wrote in Whitmer’s official response to the complaint, arguing the governor acted within her authority to slow the coronavirus and saved “countless lives” in the process.

As of Tuesday, MIchigan health officials had confirmed 48,021 cases of COVID-19 since March 10 and reported 4,674 related deaths.

“The Legislative Plaintiffs frame the governor’s actions — particularly her new declarations — as unprecedented,” Allen wrote. “But that flips the conversation on its head. The pandemic that Michigan is facing is unprecedented, as is the Legislative Plaintiffs’ refusal to ratify the declarations the governor lawfully issued in response to this ongoing and deadly crisis.”

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Kevin Grand
Tue, 05/12/2020 - 7:59pm

A governor who blatantly violates our First, Second, Fourth, Fifth, Sixth and Seventh Amendments is now concerned about a "Constitufional crisis"???

Oh, please!

Rick Raisen
Tue, 05/12/2020 - 8:59pm

Kevin, it's a Living Constitution. If you read between the lines, it says clearly in the Michigan and Federal Constitution that Democrats can declare an emergency whenever they want for as long as they want and rule as dictators during that time. You just need to read the empty spaces between the lines to see that in there.

Wed, 05/13/2020 - 11:46am

Don't bother Rick, there is no reasoning with an arrogant opinionated know-it-all who doesn’t know what he’s talking about.

Kevin Grand
Wed, 05/13/2020 - 5:31pm

Cannot attack the argument? Attack the messenger instead.

Got it, Cathy.

Wed, 05/13/2020 - 6:51pm

Aaa Cathy … I think you totally missed Rick's point. No surprise.

Tue, 05/12/2020 - 9:01pm

Her argument is sound- "The end of the beginning of start of the process of the front of the back of the ensuing panic regarding the end of the ongoing pandemic is not the end of the first of the last of the start of the governor’s authority to protect the health and safety of everyone on the planet by controlling all of the beginning and end of their behaviors." It's clear as that, people, and I don't see how anyone can argue that it isn't not the clearest and best last thing that was ever written.

Dread Pirate Roberts
Tue, 05/12/2020 - 9:08pm

It appears that the crux of the Governor's argument is that "The pandemic that Michigan is facing is unprecedented". But is it really? Less people have died of (inflated) COVID numbers as from a bad flu season. Far less people have died form (phony) COVID numbers as the 1918 Spanish Flu. The 1968 Hong Kong Flu killed more than COVID (and yet the Governor at that time did not invoke the 1945 "You Become a Dictator" law that Whitmer did). The 1957 Asian Flu killed more than COVID, and yet the law wasn't invoked then either.

The judge should do a Inigo Montoya impression when Whitmer babbles about "unprecedented" again- "You Keep Using That Word, I Do Not Think It Means What You Think It Means".

Wed, 05/13/2020 - 12:09pm

https://www.mlive.com/news/erry-2018/10/a57843a6f96442/michigans-deadlie... - "In Michigan, more than 15,000 people died of either influenza or pneumonia between October 1918 and April 1919..." That's Spanish Flu deaths over a period of 18 months. We're currently at 4,674 confirmed COVID-19 deaths in less than 2 months. Do the multiplication, start with times 9!

SourceS for: "Less people have died of (inflated) COVID numbers as from a bad flu season", "The 1968 Hong Kong Flu killed more than COVID. and "The 1957 Asian Flu killed more than COVID?

Wed, 05/13/2020 - 2:19pm

LOL.... you want to take the numbers from the rise and peak of the flu numbers (the peak of the curve) and continue those numbers out 9 months? Seriously? That's your argument? Wouldn't it be better to take the numbers from the last week (about 75 deaths per day) and carry that number out 9 months- that would be 20K more deaths added to the 5K already, or 25K- which compares with the 15K you referenced.

Let's stop playing partisan games and sprouting rhetoric. Data and science clearly show that this wasn't unprecedented. Only the reaction to it was.

Tue, 05/12/2020 - 9:09pm

Now that she's trampled on our civil rights she can turn her attention to silencing her critics

Wed, 05/13/2020 - 5:56pm

She's on it. According to her latest royal decree, the beatings will continue until morale improves, and she intends to make the punishment hurt more because a couple people are protesting, and she's enlisted the AG to target those protesting for special law enforcement actions. Because SCIENCE, you know.

Thu, 05/14/2020 - 12:32pm

Wanna make a bet if she does not get thrown out of office beforehand, she's a ONE TIMER??

Oh, and Trump is ahead of Biden 52-45, fyi!...and if he thinks this broad from Michigan will help him as a running mate....news for ya...I have people and woman that arent exactly enamored with Trump and told me "if he (Biden) picks her (Whitmer), I'll campaign for HIM!!!" :O Oopsy's, another Democratic mistake!!

Can't wait
Tue, 05/12/2020 - 9:27pm

Please issue some rulings quickly. Can't wait to see the GOP get schooled on constitutional law.

Mary Sue
Wed, 05/13/2020 - 12:38am

The Science says that Whitmer is now non-essential. Her job was to run the Executive Branch, and she isn't doing that (she is playing at being a dictator). So I talked to The Science, and The Science told me she isn't essential. And if you don't listen to The Science, then you (according to Halfwhit) are a murderer. Logic.

Wed, 05/13/2020 - 11:41am

Lets all listen to someone who "talks to science". Hell hon you cant even communicate a clear thought, let alone a clear and logical one.

Mary Sue
Thu, 05/14/2020 - 4:24pm

I don't talk to science, I talk to Science. Once I put words in capitals (or sometimes I put them in all capitals), the evidence then becomes overwhelming and you can't argue with it. That's what The Expert's say, and if you argue with The Experts, then you are evil and deserve to lose your property, rights, and eventually life. That's what it says in the Constitution.

old hippie
Wed, 05/13/2020 - 11:28am

This is a life-or-death crisis we are facing. It’s all over the news : “Coronavirus cases spike in some U.S. cities and workplaces as stay-at-home restrictions relax. While some of the hardest-hit areas of the country are seeing cases fall, others are experiencing an uptick following the rollback of some restrictions.”
“Countries that reopened are closing down again as coronavirus infections spike”
Some rural cities without restrictions are seeing infections jump this week to 600% ! And Texas is reporting 1,000 / day infections. These are “real” statistics, not witchcraft.
While our Governor steps up to protect our lives, the Republicans response is to scramble to pander to the protests of tiny splinter factions and the 6 o’clock news to save their careers.
These "politicians" are promoting the spread of the virus and death by inciting more protests. Someone should look into legal action to charge them with high crimes and treason. At the least, wrongful death lawsuits could and should be filed.

Wed, 05/13/2020 - 11:39am

Nope. She created the crisis when she refused to talk with the legislators.

Clay Schultz
Wed, 05/13/2020 - 11:45am

The only power grab here is from the Governor. She had emergency power for the first month after that it should be controlled and agreed to. Absolute power Corrupts absolutely, she could theoretically declare a state of emergency for the remainder of her term. Is this decision based on science, which she says, but hasn't presented, or just politics. Every Democratic Governor calls the stay home policy the same thing. Sounds like DNC marching orders, and as the electorate rebel and revolt which is happening now in many states, these emergency powers will become irrelevant because police, judges and municipalities will not enforce them. There is inherent risk in everything we do, but that is our right/choice as citizens. If you don't want the risk, stay home, let the rest of us get on with life.

butch krumenaker
Wed, 05/13/2020 - 12:52pm

The reason why the State g.o.p. is suing is because they didn't get to put in their two cents....after the g.o.p. leadership from Washington, we get that their is no leadership from the g.o.p. ! Look at the roads, eight years of Snyder, increased fees and we still have the worst roads in America ! Thank you g.o.p. !

Mr T
Wed, 05/13/2020 - 1:04pm

Yes there is a constitutional crisis: The executive branch has ignored the legislative and overruled the judicial.

suck it Karen
Wed, 05/13/2020 - 2:26pm

Play stupid games, win stupid prizes. The only crisis here is YOU and we'll be working on your removal until it's done.

Wed, 05/13/2020 - 5:32pm

Wouldn't it be great if we could see this tyrant hanging from a rope in the town square. Too bad they don't dole out justice like that to traitors anymore. Instead, she gets a mass of brain-dead followers praising her, and all of the taxpayer dollars a dictator could ever want.
Isn't there any way we can send this tyrant to a Russian gulag? Her stasi pig of an AG needs to go with her.

Wed, 05/13/2020 - 5:33pm

Oh, and I have to ask one more thing...
We have had closed captioning since, what, the early 90's?
Why is this person signing behind her? Is this some kind of shark jumping virtue signaling that the stasi elite are doing now? I just can't keep track anymore.

Wed, 05/13/2020 - 7:16pm

Whether you agree with the governor or not, she is certainly the one that has brought about the constitutional crisis. Her decision to continue emergency orders with the approval of the legislature is very questionable, and I really do not see how the legislature can do anything other than bring this decision before a court. It will probably end up in the supreme court. Her claim that she is following the 1976 law because she ended one emergency order then began a new one is clearly not within the intent of the law.

Richard M
Wed, 05/13/2020 - 9:21pm

What constitutional crisis. It is the role of the courts to decide these issues. Governor Whitmer should not be interfering with them, and that's exactly what she's doing by calling this a 'constitutional crisis'.

Thu, 05/14/2020 - 12:27pm


Thu, 05/14/2020 - 12:37pm