Whitmer governs by ‘fiat,’ GOP argues in suit over Michigan pandemic powers

Michigan Republicans argue Gov. Gretchen Whitmer needed legislative approval to extend her coronavirus emergency declaration beyond the end of April. (file photo)

LANSING — Michigan Gov. Gretchen Whitmer has claimed legal authority she doesn’t have to “exercise expansive, all-encompassing, unilateral lawmaking power” during the coronavirus pandemic, a lawyer for the Republican-led Legislature argued Tuesday.

“And she has done it all with the bite of criminal sanctions behind it,” attorney Michael Williams said in arguments before the Michigan Court of Appeals, which is expected to issue a ruling by the end of the month in a case with sweeping implications for state government and public health. 

The GOP-led Legislature sued Whitmer in May after rejecting her request for a second extension on an emergency declaration she issued in March when the state confirmed its first cases of COVID-19, which has since killed more than 6,000 Michiganders. 

Since the suit, the first-term Democrat has issued a new emergency declaration and continued issuing executive orders to fight the pandemic. To date, Whitmer has signed 161 orders, including business restrictions that GOP leaders have criticized, the “stay-at-home” order she lifted in June and ongoing mask orders. 

Whitmer won the first round of the suit in May, when Michigan Court of Claims Judge Cynthia Stephens called the lawsuit "meritless" because state law gives the governor "sufficiently broad power" to respond to public crises like the pandemic. 

The case, which is expected to reach the Michigan Supreme Court, focuses on two separate statutes that grant emergency powers to the governor during times of crisis. 

The first, a 1945 law Whitmer has relied on for continued authority, allows governors to declare emergencies and "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." 

That law gives Whitmer clear power to respond to the public health emergency, Deputy Solicitor General Eric Restuccia said Tuesday. The 1945 statute allows Whitmer to issue emergency declarations without legislative approval, but it doesn’t confer “limitless power” because her decisions are still subject to  judicial review, he argued.

“This pandemic is like a fire that’s continuing to rage,” Restuccia told the three Court of Appeals judges hearing the case. “The emergency remains ever present.”

But Republicans contend Whitmer’s powers are limited by a separate 1976 law that allows the governor to declare a state of emergency or disaster for 28 days and requires legislative approval for any extension beyond that date. They argue Whitmer violated that law by continuing the state of emergency after April 30. 

Without the Legislature’s 28-day check on executive authority, Whitmer can “basically exercise fiat power throughout the state of Michigan for such time as she may determine,” Williams said Tuesday. Instead, Whitmer should work with the Legislature on a consensus response to COVID-19, he told the three-judge panel. 

At issue are two interpretations of the 1945 law. 

Republicans contend it gives governors the authority to declare local emergencies since the law explicitly refers to an “area,” section” or “specific zone” of Michigan. Whitmer’s lawyers say the statute, which refers to “great public crisis” and “disaster,” is broader in scope.

“Nothing in those concepts would suggest, ‘Oh, that can just be in, you know, the city of Alma,’” Restuccia said. “It could be the entire state.”

While the 1976 law is newer, which would seem to suggest it is more applicable, it includes a provision stating that it does not “limit, modify, or abridge” the governor’s authority under the 1945 law. And that could be problematic for the GOP case. 

“I’m struggling” with that language,”  Court of Appeals Judge Kristen Frank Kelly told Williams. “Our job is just to read the statutes and figure out what they mean, and it’s really clear. We can’t really add or subtract any language.”

Stephens, appointed to the Court of Claims by former Democratic Gov. Jennifer Granholm, expressed similar concerns when she sided with the governor in May. 

The GOP-led Legislature appealed and requested expedited review by the Michigan Supreme Court, which declined to take up the case immediately but directed the Court of Appeals to rule by Aug. 21.  

The panel now considering the case has a conservative lean. All three Court of Appeals judges, including Jane Markey and Jonathan Tukel, have Republican ties.

Health experts have rallied to Whitmer’s defense.

The Michigan Nurses Association union, in a recent court brief backed by 30 doctors and health care professionals, argued Whitmer’s emergency powers are “necessary” to continue fighting COVID-19. The GOP lawsuit could “limit the governor’s powers when they are needed most” and “lead to disastrous consequences,” wrote attorney Todd Mendel.

Another coalition of medical officials, including Flint pediatrician Mona Hanna-Attisha, told the appeals court that Whitmer’s orders have saved lives. 

“Were this court to abruptly invalidate all of the governor’s emergency measures, including those focused on social distancing, the result might well be a resurgence of COVID-19, with peak disease rates potentially nearing or exceeding those experienced in the current outbreak,” wrote attorneys Jennifer McManus and Joshua Matz.

The high-profile case is among a series of state and federal lawsuits challenging Whitmer’s emergency authority and specific executive orders she has issued. The governor has prevailed in most instances, but several cases are ongoing.  

U.S. District Court Judge Paul Maloney in June asked the Michigan Supreme Court to answer two related questions: Whether Whitmer has authority to continue issuing executive orders, and whether the 1945 or 1976 laws violate the separation of powers or non-delegation clauses of the Michigan Constitution. 

Attorneys will argue those questions before Michigan justices on Sept. 2. 

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Tue, 08/04/2020 - 6:46pm

Apparently the Republicans have amnesia when it comes to the 8 years of the Snyder swamp.

Wed, 08/05/2020 - 10:22am

So tell us Mike, WHEN did Snyder declare an unending emergency and take control of the entire government and start issuing unchallengeable orders (that only she can repeal) and cause the deaths of over 2,000 people in nursing homes?

I'll give you a hint: NEVER.

What Up!
Wed, 08/05/2020 - 4:47pm

You must have been born this year. Snyder installed emergency managers across the state. The nursing homes took the responsibility to care for their patients assuring the governor of their capabilities.

No kidding
Wed, 08/05/2020 - 11:54am

Yeah, I think the GOP removing duly elected officials and imposing emergency managers that poisoned the electorate is the definition of "governing by fiat!"

middle of the mit
Tue, 08/04/2020 - 7:45pm

Before I even read this article, ALL deaths from the beginning to the end are now on the GOP. This is the tactic they are playing by pinning all blame on the Governor, yet they want even more, and we know this by their actions.

They want it all opened up. Give it to 'em. Placate the whiners and wrap what happens around their neck like a medal. And NEvER let them live it down.
First, It was kinda......well..........to lead with a sound bite that conservatives and others might think was a quote from the Judge. You see how they can change applications into actual ballots. Watch.

The Governor wouldn't be working unilaterally if you would listen to the experts. But since you consider yourselves the experts......you only listen to yourselves.

You hate the stay at home order, but are you checking cases in the areas you represent? They are a risin'!

The Governor wouldn't need any Act of powers or anything if Republicans would act like responsible adults. Just wear a mask and social distance!

Fiat powers? What? Is she going to send unmarked armed troops into your city or town? Is she going to round up immigrants and separate children from parents and put them all in chain link......"rooms"?

[[[The panel now considering the case has a conservative lean. All three Court of Appeals judges, including Jane Markey and Jonathan Tukel, have Republican ties. (And Bridge, if all three judges are conservative or have conservative ties, does the court lean conservative or IS the court conservative? Semantics? Really?)

Health experts have rallied to Whitmer’s defense.]]]]
Business experts vs health experts during a pandemic. Sounds reasonable.......doesn't it?


I kinda like that last one. Especially if business experts are the ones we have to listen to over health experts during a health crisis. Yeah! I understand it is a business crisis too! But if you don't get rid of the health crisis FIRST, your business and you might not be there anyway.

Wed, 08/05/2020 - 10:28am

hahahahaha...hahahahaha...hhahahaha.....FUNNIEST. POST. YET.

Tell us honey, who gave the orders to put COVID patients into nursing homes, directly causing the deaths of over 2,000 people?? Your precious Dictator Whitmer. Make all of the excuses for her actions (they are hilarious), but she gave the order and caused those deaths.

Remember the Flint water crisis where people like you blamed Snyder for it? This is the SAME EXACT SITUATION.

middle of the mit
Wed, 08/05/2020 - 2:18pm

Tell me honey, what do you think would've happened if the GOP had their way and didn't do anything at all?

You better check the Southern States,,,,,,,if you can trust they are reporting correctly!

middle of the mit
Wed, 08/05/2020 - 4:29pm

Addendum; I already know what the GOP would've done. They tell us all over social media. Those olds didn't die of COVID! They died from underlying health problems! Why are you libs trying to scare people of something that is just the flu or cold.

Honey? You all gotta pick a talking point and stick with it. Lies are easier when you don't have conflicting views on what people are or aren't dying from.

And to equate a virus that no one, not even the Governor has control over to what happened in Flint, where an Emergency Financial Manager left out one single chemical that kept the lead from leaching into the water is the worst sort of hyperbole.


A majority of the six-justice panel (a seventh justice recused herself) agreed that the named plaintiffs — six Flint residents who allege former Gov. Rick Snyder and state agencies violated their rights by making cost-cutting decisions that exposed them to lead-tainted water — established a claim strong enough to withstand the state’s attempt to kill the case.

May God help you.

Fri, 08/07/2020 - 8:42am

The GOP loves to distort the truth on nursing homes and use their misleading talking points to score political points instead of actually working to solve the problem. Thankfully the exact site you are commenting on happened to do an article on this subject. https://www.bridgemi.com/michigan-government/third-michigans-covid-death...

"Neither elder care advocates nor the state health department say they are aware of any nursing home that was forced to admit a COVID-positive resident against its will. "

Even the original order that was never enforced was requiring nursing homes to accept "medically stable" patients previously hospitalized for COVID-19, so long as the facilities had set up isolation units and had access to adequate PPE. Maybe you should turn your ire to those facilities that accepted patients without isolation units or adequate PPE. Maybe you should turn your ire towards the federal government for such a poor early response, inadequate testing, and inadequate emergency supplies. Maybe you should turn your ire to the President, who let his son-in-law, who only has real-estate experience and no medical, epidemiological or governmental experience, lead a coronavirus response task force.

Charlotte Morton
Mon, 08/10/2020 - 7:55pm

Whitmer did not order any one to take Covid patients in nursing homes. It was not the greatest idea, but the nursing homes were supposed to have precautions in place to protect the residents. A lot was unknown about the virus when that happened and supplies for PPE were limited thanks to 45. 45 said it was a HOAX any way, so where are your concerns for our country, whose Covid deaths are higher than any other country in the world ? All because of an unprecedented lack of action by # 45 that infection rates are still rising in the USA with no end in site.

RIP Americans
Wed, 08/05/2020 - 11:58am

Now 160,491 people in the US have died from Covid-19, probably under-counted. We grieve, not as Republicans and Democrats, but just as Democrats because Republicans obviously don't care. They mock it as "seasonal flu" that will just disappear. They want us to give businesses money and do nothing to stop the spread.

Tue, 08/04/2020 - 9:24pm

Are they arguing their case with Zoom? They seem too afraid to meet in person for their jobs and they have something against Zoom for their jobs.

BTW How come there haven't been any capitol protests anymore? Seems the GOP constituents LIKE the LEADERSHIP Whitmer is showing. They aren't even posing with their guns anymore. What gives? Did the Republicans file their lawsuits too soon? What exactly would Republicans do differently? What do they think Whitmer is doing wrong?

Oh yeah, it's a lawyer's favorite client, one with deep pockets that wants to fight on principle. BTW Do We the People, the taxpayers, have deep pockets? It must seem nice to you Republicans too pay your Republican friends who are attorneys with OUR rainy-day fund during a pandemic.

What do you people get if you win? Government by committee? Are they doing that in any other state, red or blue? There's an old saying "Too many chiefs and not a lot of Indians." Guess you'd say Native Americans today, but you get the point.

Our state would be a hot mess if the GOP had anymore say in any of this pandemic emergency. In fact, our state would look like the lame federal government response with everyone going on vacation, getting nothing done. Sounds like the GOP in Michigan.....

Fri, 08/07/2020 - 3:22pm

What is the state doing wrong? How about looking for a fantastical number of less than 10 cases per million before opening up health related businesses like, fitness centers? The current positivity rate for TB in this country is 28 per million. Do you honestly think 10 or less is realistic for this disease?!

Wed, 08/05/2020 - 9:56am

Over 20 public health officials quit, retired, or resigned their positions recently, according to The National Association of County and City Health Officials. This wave of resignations has been prompted in part by the death threats and harassment public health officials are receiving. The Republican Party is responsible for misleading the public and I hope this shows at the polls in November. Michigan GOP 'leaders' are waging a harassment campaign against the Governor and truth.

Wed, 08/05/2020 - 11:09am

And if Whitmer had opened up, we'd be in the position of the sand states, increasingly sick, poor and closed. Geez, it's like the Republicans WANT to kill us. There is just no way to pick up a turd by the clean end....none, and this is in the position we are in thanks to the GOP and their sycophants who have enabled Trump to walk away from his duty to protect his citizens. Please save us from this Caligula.

Wed, 08/05/2020 - 12:07pm

On the school front, they are doing the same harassing teachers into teaching under dangerous circumstances with in-person classes. November can't come fast enough. My only sadness is that tens of thousands of people will continue to die unnecessarily. Such BS that the GOP is Pro Life!

A Yooper
Wed, 08/05/2020 - 10:13am

Hey...it's all fake medical data,......LMAO!

Anonymous 2
Wed, 08/05/2020 - 10:19am

She is keeping us safe. That's important.

Wed, 08/05/2020 - 11:47am

The GOP has gerrymandered the state so totally that in spite of more votes for Democrats in state and federal elections, they still hold power in Lansing. We voted to fix that with the Voters Not Politicians ballot initiative. Still, they are suing about that.

Michigan was one of the hardest hit states initially during the early outbreak of a global pandemic, third in total cases, fourth in deaths. I remember because I've been watching that for a long time. We are now 18th in total cases, and some of the states that have passed us are FL, TX, GA, AZ, TN, AL and SC. We are now 9th in fatalities.

So, the Greed/Germs Over People party is suing to remove the rights of a duly elected Governor, who has nearly a 70% approval rating about her handling of the pandemic, so they can what? Force the state of Michigan to kill more of its citizens with their stupidity?

Macomb County is a hotspot once again. Why? Because Hackel won't enforce the orders. There is a gym near me in Macomb County that is open, and there are 20 or more cars parked in front nearly every day. People walking in aren't wearing masks.

And, that's not all. They are circulating a petition that circulators tell you is to "help small businesses" during the pandemic, but is intended to reach the ballot to remove Governor Whitmer's rights to rely on those orders, and rescind the order powers mentioned in this article. In a state that is handling the pandemic BETTER THAN A LARGE MAJORITY of states. I know what the circulators are saying because one approached me. I asked to read the petition and I read it. I asked the circulator "Do you think Governor Whitmer is doing a good job with her handling of the state's COVID-19 cases?". She said yes. Then I asked her why she is getting signatures for a petition to remove the orders allowing the Governor to do exactly that? She had no idea what this was about.

If you have been approached to sign this and it is being mischaracterized, use this website to report it: https://docs.google.com/forms/d/e/1FAIpQLSdOdREb7-TJ2fYzXQZ7W7QFdWcQ5Vex...

Wed, 08/05/2020 - 12:40pm

A problem with our Michigan State Legislature accusing governor's orders to be illegitimate is that the legislature is illegitimate. The Michigan Appeals Court and the Michigan Supreme Court should throw these cases out if for no other reason than that the plaintiffs are not our representatives.

Few in our legislature were elected to office. Nearly all of them were gerrymandered into office.

Th governor received a majority of our general election votes. For nearly all of our legislators, the general election was irrelevant, since the winners of the gerrymandered seats were decided in the partisan primary elections of the party the districts were gerrymandered to favor.

It's been nearly two decades since we've had legitimate representation in our Michigan State Legislature and the problem isn't solved until legitimately elected Michigan legislators take their oath of office in 2023. In 2021, the new Citizens Redistricting Committee will draw district lines and 2022 will be the first legitimate general elections for district seats in two decades. Those elected will take their oath of office in 2023.

Thu, 08/06/2020 - 10:33am

As we gain real on-the-ground experience with Covid, we are able/must to look beyond the media and State daily histrionic drumbeat and at the cold hard facts.
-- Michigan has a population of 9.987 million (2019) people;
--As of July 29, 2020, at most 9 tenths of 1%, 0.009, of Michiganders have been tested positive.
--As of July 29, 2020, Michigan has experienced 88,025 positive tests each of which are reported as “cases”; This is not the number of people who tested positive—it is literally the number of positive tests. Any 1 person who tests positive more than once is counted as a “case” each and every time his test results are reported!!
--6,426 Michiganders have reportedly died from Covid; that's less than 0.001% of the population.
-- Over 1/3rd of those come from nursing homes. Michigan nursing homes have a capacity of 46,000 residents. Nursing homes are insanely expensive [my family paid $12,250 a month] and residents are there because they are deadly sick. This 1/3rd does not include deaths at assisted-living facilities or private foster care homes as the State refuses to disclose those numbers—at least 914 assisted-living facilities exist in Michigan.
-- In 2017-18, Michigan saw 1,800 people die from the flu and/or pneumonia.
-- In 2018-19 1,871 died of the flu with 70-90% of flu deaths in patients 65 years and older.
-- In 2018, 98,985 Michiganders died; 53,583 from cancer and heart disease alone.
-- In 2017 Michigan experienced: 97,523, deaths with 25,187 deaths from heart attack; 20,671 deaths from cancer; 5,688 deaths from COPD; 5,002 deaths from stroke. The MDDHS website is missing all data for 2019.
-- Under the Federal Cares Act, hospitals get a $13,000 bonus from the Federal government for simply diagnosing a patient with Covid. Anyone think that hospital administrators are not jumping on that cash?
A reasonable conclusion is that the risk of Covid killing you is insanely low, but the things that cause/increase risk of heart disease, cancer, stroke and lung disease are very much worth your concern.
For all of you who think that Whitmer's "the ends justify the means" usurpation of all power to govern is fine with you because she "saving lives," get ready to give up your cigarettes, beer, wine and drugs, get off your behinds for an hour exercise every day, give up all refined sugar and flour products, etc. You may want an all powerful mommy that can save you, but there are those of us grown up enough to accept the immutable truth that humans die, that all humans die of something eventually.