Judge predicts Legislature-Whitmer fight going to Supreme Court

Craig Mauger
The Detroit News

Lansing — A legal fight with wide-ranging implications about powers between the Michigan Legislature and Gov. Gretchen Whitmer went Friday before a state judge, who predicted the case would end up at the Michigan Supreme Court.

Court of Claims Judge Cynthia Stephens heard oral arguments for about 80 minutes Friday morning over the video-conferencing application Zoom. At one point, more than 7,000 people were watching the arguments over the internet as the COVID-19 pandemic continues to restrict public gatherings.

"You will obviously get something in writing, which will certainly not be the last word," Stephens said at the conclusion of the hearing. "It will be on its way to my big bosses, the Supreme Court."

Chris Allen, an attorney for the Democratic governor, and Michael Williams, an attorney for the GOP-controlled Legislature, debated whether Whitmer had exceeded her executive authority and state laws in issuing unilateral orders to combat COVID-19 under emergency declarations the Legislature hadn't signed off on.

The case was about whether a governor can exercise "effectively limitless" power for "as long as the governor wishes," Williams argued.

But Allen, an assistant solicitor general, countered that Whitmer has been using power granted to her by the Legislature itself. Under the laws, she has a duty to declare of a state of emergency if one exists, he said. It's that emergency declaration that grants the governor the ability to issue unilateral orders, such as her stay-at-home restriction.

"The Legislature is asking this court to declare its own law unconstitutional," Allen said.

But Williams' said it was Whitmer's "broad" application of the law that made for a constitutional crisis.

The stakes of the case are potentially far-reaching during a pandemic.

A ruling against the governor would strike down executive orders she's issued to combat COVID-19, many of which have directly touched Michigan residents' lives, such as the stay-at-home restriction that's in place through May 28.

House Speaker Lee Chatfield, R-Levering, and Senate Majority Leader Mike Shirkey, R-Clarklake, announced the lawsuit on May 6 after Whitmer issued orders extending the state of emergency in Michigan through May 28.

The Legislature, which wants the economy here to reopen more quickly, refused to extend the emergency, letting it expire in GOP lawmakers' eyes, on April 30.

Senate Majority Leader Mike Shirkey, Gov. Gretchen Whitmer and House Speaker Lee Chatfield are pictured.

Stephens, who was appointed to the Court of Appeals by former Democratic Gov. Jennifer Granholm, asked skeptical questions of both sides during the hearing. Four Court of Appeals judges randomly split up Court of Claims cases.

At one point, she pressed Allen, who represented Whitmer, about who could stop a governor from perpetually issuing emergency declarations for the entirety of a governor's four-year term.

"She can’t just say there’s an emergency if there isn’t," Allen replied.

“Why not?" Stephens then asked. "Who can do anything about it?"

There are two Michigan laws that allow a governor to declare a state of emergency and take unilateral actions: One gives the Legislature input after 28 days; and another allows the governor to determine when the emergency is over.

Stephens' tough questions focused on the 1976 Emergency Management Act, which allows the Legislature to weigh in after 28 days.

However, legal experts contend Whitmer's best arguments for maintaining emergency powers lie in the 1945 Emergency Powers of the Governor Act. That law doesn't include a timeline for the Legislature to weigh in and allows the governor to decide when to rescind an emergency declaration.

Lawyers for the Michigan House and Senate have argued the 1945 law is meant to be used to combat local emergencies or uprisings, not a statewide pandemic. The law says a governor may "designate the area involved" in the emergency.

Lawyers for Whitmer say the "area" involved in the COVID-19 crisis is the entire state, where there have been 4,787 deaths linked to the virus since March 10.

At one point, Stephens pressed Williams on the Legislature's interpretation of the law.

"Because it says 'area,' we decide an area can’t be the entire state because it doesn’t say 'the state?'" she asked.

At the end of the hearing, Stephens asked the court reporter how long it would take for a transcript of the arguments to be ready. She requested the transcript by Tuesday before concluding the session.