Whitmer extends Michigan emergency to May 28; GOP plans to sue

Craig Mauger
The Detroit News

Lansing — The Michigan Legislature on Thursday authorized a historic lawsuit over Gov. Gretchen Whitmer's powers to combat COVID-19 as the governor raced to issue orders to extend the state of emergency until May 28.

Whitmer's extension came after Republicans in the House and Senate said they would not extend her declared state of emergency, which they believe expired at the end of Thursday.

In the eyes of GOP leadership, that means the executive orders she issued, including the stay-at-home order presumed to extend through May 15, also expired, said Gideon D'Assandro, spokesman for House Speaker Lee Chatfield, R-Levering.

Michigan Senate Majority Leader Mike Shirkey, R-Clarklake, talks to protesters in the Senate gallery on Thursday, April 30, 2020.

Whitmer, in turn, rushed to issue new or adjusted executive orders late Thursday, including one that will keep casinos, restaurants, bars and theaters closed through May 28, barring a successful legal challenge.

The extraordinary day in the state Capitol left great uncertainty over what orders would be enforced around the state on Friday. Also uncertain was how and when a lawsuit brought by the legislative branch of state government, if filed, would proceed against the executive branch.

The moves came as hundreds of protesters gathered at the Capitol on Thursday against Whitmer's stay-home order. With the protesters present, the House and Senate approved resolutions that authorize their leaders to file legal challenges against unilateral efforts the governor takes to combat the coronavirus.

"If she does not recognize the end of the emergency declaration, we have no other choice, but to act for our constituents," said Senate Majority Leader Mike Shirkey, R-Clarklake.

Whitmer reiterated that the Legislature does not have the ability to end the governor's emergency declaration and stop her from taking action to combat the spreading coronavirus, which has sickened more than 41,000 and killed more nearly 3,800 people in Michigan.

"We remain in a state of emergency. That is a fact," Whitmer said during a Thursday night virtual town hall. "For anyone to declare mission accomplished means they're turning a blind eye to the fact that over 600 people have died in the last 72 hours."

The House and Senate adopted the lawsuit-related resolutions in voice votes, meaning there were no official tallies of lawmakers' positions. Democrats spoke out against the proposals. The resolutions don't require Whitmer's signature.

The Legislature also approved a bill that would allow some of the governor's orders to continue, notably not including her most recent stay-at-home order. The bill would set safety standards for businesses through May 30. The measure requires Whitmer's signature.

Whitmer's office indicated she intends to veto any bills limiting her authority. She won't sign any bills "that constrain her ability to protect the people of Michigan from this deadly virus in a timely manner," her office said in a statement.

"There’s a 0% chance that any of this is anything other than a political show," said Sen. Curtis Hertel, D-East Lansing.

Steve Liedel, an attorney who served as general counsel to Whitmer's transition team, said the governor is the person responsible for implementing state law, and she'll implement it "in a way that she thinks is consistent with the constitution and the statute."

While a legal challenge is possible, it's also possible the judicial branch won't want to get involved in a feud between two equal branches of government, Liedel said.

During the televised town hall Thursday night, Whitmer was asked about a potential lawsuit from lawmakers. She noted that no suit had been filed.

"I am not getting distracted by the political maneuverings that are going on at the Capitol," Whitmer said.

Whitmer previously had asked lawmakers to extend her emergency declaration by 28 days. The impact of their refusal isn't clear.

Republicans point to the 1976 Emergency Management Act, which gives the governor emergency powers but also requires the Legislature's approval for further measures after an emergency declaration has been in effect for 28 days.

Whitmer issued a new emergency declaration under that law on Thursday night.

Democrats also point to a 1945 law that allows the governor to declare a state of emergency and have emergency powers, but which doesn't include the 28-day deadline. The 1945 law suggests a governor can declare when an emergency no longer exists. Whitmer also declared an emergency under the 1945 law late Thursday.

The 1976 law does provide special legal protections for health care workers and first responders, which Whitmer has pointed to as a reason the Legislature should extend the state of emergency.

"The emergency powers that I have as governor do not depend on an extension from the Legislature," Whitmer said Monday. "But the protections for our health care workers do. ... It’s better for everyone if we work together to get this right."

Protesters gather outside the Michigan House chamber on Thursday, April 30, 2020. The demonstrators demanded access to the House chamber as State Police troopers blocked the entrance, which is usually reserved for House members and staff.

The protections aim to safeguard health care workers amid a crisis from liability unless they are grossly negligent.

Ruthanne Sudderth, a spokeswoman for the Michigan Health and Hospital Association, said the group wants to see the legal protections continue.

"Health care workers are doing heroic work on the front lines and deserve as much support as possible right now. Letting these protections lapse will simply add to their mental stress," Sudderth said.

The Legislature's bill would continue the protections. It's unclear what happens if the bill is vetoed.

In a statement, Chatfield said the legislation approved Thursday "includes critical measures to protect the public health, including directives for distance learning for schoolchildren in place of in-person instruction and the current prohibition on large gatherings."

"We need to take decisive action to fight the spread of the coronavirus, but this governor’s unchecked and undemocratic approach is the wrong way to do it," Chatfield said.

"The current status quo relies on one-size-fits-all edicts that unfairly punish millions of people across the state without giving them any recourse or voice in the process. The people deserve a better solution, and we can provide it."

Many of the disagreements between GOP lawmakers and Whitmer have focused on how quickly to begin reopening sectors of Michigan's economy.

The governor has begun outlining her plans for reopening the state's economy in recent days, but Republicans want moves made more quickly.

On Tuesday, the Senate formally urged Whitmer to expand the number of people who can go to work during the COVID-19 pandemic and allow elective procedures in hospitals.