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Michigan GOP lawsuit: 1945 law unconstitutional, separation of powers violated

Michigan Capitol Building
Flickr - http://j.mp/1SPGCl0
Another snow day is in store for the Michigan legislature

Legislative Republicans announced Wednesday morning they have filed a lawsuit in the Court of Claims over Governor Gretchen Whitmer's decision to extend her emergency declaration despite the request being rejected by the Legislature last week.

Calling her unilateral actions unprecedented and unconstitutional, Senate Majority Leader Mike Shirkey (R-Clarklake) and House Speaker Lee Chatfield (R-Levering) said they had no choice to ensure the Legislature has a say in the response to the new coronavirus pandemic.

After the Legislature refused to extend the governor's emergency declaration extension request, Whitmer chose to unilaterally do so April 30.

The governor has repeatedly said she has significant powers under the Emergency Powers of the Governor Act of 1945 and the Emergency Management Act of 1976 to respond to the COVID-19 threat.

The Legislature has pointed to the 1976 law saying she is required to obtain an extension from the Legislature. The 1945 law is silent on that topic, however, and the governor has used that law to continue her emergency powers.

In the lawsuit, Republicans argue the 1945 law Whitmer has cited allowing her broad emergency powers without a clock on the emergency and without the Legislature extending the emergency, is meant for local situations, not statewide ones. The statute does not refer to local situations, but does say the governor can declare an emergency and "designate the area involved." There is nothing in the statute, however, that says the "area" cannot be the entire state.

The lawsuit further argues that if the court determines the two statutes to be "coextensive," then the 28-day limit in the Emergency Management Act should apply to the Emergency Powers of the Governor Act.

They also argue the state's Constitution requires a separation of powers "among co-equal branches of government."

"Contrary to express legislative intent and the most basic understanding of checks and balances, the governor's actions would leave Michigan in a state of emergency indefinitely, with no real constraints on the governor's vast emergency powers during that time," the lawsuit says.

The Constitution provides that legislative authority is vested in the Legislature, the lawsuit says, meaning the orders the governor is issuing altering or suspending laws absent a legislative extension violate the separation of powers. Countering an expected argument from the governor that the Legislature delegated those powers in the Emergency Powers of the Governor Act, the lawsuit contends "the Legislature lacks the constitutional authority to delegate as much power as the governor believes the EPGA gives her." Further, the lawsuit says the Emergency Powers of the Governor Act lacks an express articulation of the exact policy to be achieved by such a delegation.

Even if the Emergency Powers of the Governor Act does authorize the governor's orders, the lawsuit says, the statute would violate the Michigan Constitution's separation of powers and therefore be invalid.

The suit is seeking a "speedy hearing" of the action and is asking the court to declare the governor does not have authority to act under the emergency laws in the state and is violating the separation of powers clause in the Constitution. The lawsuit seeks an immediate declaratory judgment and oral arguments.

"Today was very avoidable, but it is necessary," Chatfield told reporters in announcing the lawsuit. "It's a sad day for our state because we truly should be all be working together. … We believe that this is a necessary step to ensure that millions of people in our state have their voices heard."

Shirkey said legislative Republicans had sought to work with the governor ahead but were rebuffed not through a direct response but in the select leaking of emails to the media of private negotiations.

This, he said, led to their rejection of Whitmer's request for an extension of the emergency declaration that was to expire April 30 and offer what it believed was legislation that would extend needed portions of the government's response to the COVID-19 pandemic.

Shirkey says Whitmer’s actions violate the state constitution’s checks and balances.

"It is our firm belief that that law does not give the power to a governor to rule the entire state on their own for as long as they like," Shirkey said. "Today we are asking the courts to affirm our opinion. I want to be sure that our state doesn't face this kind of abuse ever again."

House Speaker Lee Chatfield says the governor claimed power she does not have.

“The question is can a governor not only create a state of emergency, but then by unilateral unfettered control keep a state of emergency in perpetuity for as long as he or she decides, therefore rendering the Legislature completely meaningless.”

Whitmer’s office issued a statement saying Michigan still faces a health crisis, and Republican should not be allowed to get in the way of addressing the emergency.

The governor’s press secretary says the governor won’t be swayed by political or legal threats.

Michigan Radio listeners, readers, and reporters are rising to the challenge every day. If you can, please support essential journalism during this crisis.

Rick Pluta is Senior Capitol Correspondent for the Michigan Public Radio Network. He has been covering Michigan’s Capitol, government, and politics since 1987.
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