Whitmer extends Michigan's state of emergency through July 16

Beth LeBlanc
The Detroit News

Lansing — Gov. Gretchen Whitmer extended Michigan's state of emergency Thursday through July 16 as a federal judge asked the state Supreme Court to clarify the governor's emergency powers

The declaration, which was set to expire Friday, allows the Democratic governor continued authority to issue the executive orders that have created the framework for the state's coronavirus-restricted activity in recent months. Whitmer's response to the pandemic has so far included 122 executive orders.

“The aggressive measures we took at the start of the COVID-19 pandemic have worked to flatten the curve, but there is still more to be done to prevent a second wave,” Whitmer said in a statement. 

The announcement came hours before individuals planned to gather on the Michigan Capitol steps for a second American Patriot Rally focused on "A Well Regulated Militia."

The initial American Patriot Rally on April 30 came at the height of furor over Whitmer's stay-at-home order as dozens of protesters, some armed, gathered outside the House chamber and demanded to be allowed inside. Michigan State Police troopers blocked the entrance. 

The stay-at-home order has since been rescinded. Speeches planned for the event included one focused on "The Responsible 2nd Amendment American" and a panel discussion on "Who runs this state? How the people are holding the government accountable."

Whitmer noted in her Thursday announcement that nearly every state in the nation is maintaining its state of emergency to maintain flexibility throughout the pandemic. The Republican-led Legislature has sued in state court to stop the state of emergency, arguing the governor has exceeded her power and violated the Michigan Constitution.

A federal judge asked the Michigan Supreme Court Thursday to clarify whether Whitmer has the authority to continue issuing or renewing executive orders under either of the two state laws that govern her emergency powers.

The order stems from a federal lawsuit by a Grand Rapids medical center filed against Whitmer's order banning non-essential procedures, but the root questions raised by U.S. District Judge Paul Maloney closely mirror those argued by the Michigan Legislature.

The federal and state lawsuits are seeking answers to whether state law allowed for the governor's emergency powers to continue after April 30, even without legislative approvals, and whether the emergency laws giving Whitmer virtually limitless authority violate the separation of powers between the governor and Legislature in Michigan's Constitution.

The Legislature and Whitmer, in a separate lawsuit, recently tried to bypass the Michigan Court of Appeals and get the state's high court to address similar questions regarding the governor's emergency powers. But in a 4-3 vote, the justices rejected the request and sent the case first to the Court of Appeals where oral arguments are set to begin in August. 

In May, state Court of Claims Judge Cynthia Stephens ruled in the Legislature's lawsuit that Whitmer had the legal authority to extend Michigan's state of emergency under the 1945. But she ruled Whitmer exceeded her authority under the 1976 law, which requires Legislative approval for an extension after the initial 28-day emergency has expired.

Maloney's Thursday opinion certifies the two questions to the Michigan Supreme Court, which can  rule on the questions or ignore them. 

At a Wednesday news conference, Whitmer indicated she would extend the state of emergency and took another swipe at the Republican-led Legislature without naming it, saying that any attempt to strip her emergency powers "is irresponsible, dangerous and foolish."

Whitmer's extension of the state of emergency was criticized by Michigan Republican Party Chairwoman Laura Cox, who called for Whitmer to end her "experiment with executive dictatorship."

"Our nation works because our system of checks and balances ensures that no individual can become too powerful, yet Gov. Whitmer has used the COVID-19 crisis to elevate her office to unprecedented levels of power," Cox said in a statement.

In recent weeks, as the daily and weekly COVID-19 case and death numbers have declined, Whitmer's restrictive stay-home order and other limitations on regular activity have gradually been loosened. But the governor argued in the Thursday state of emergency declaration that "this global pandemic is far from over."

The threat of a second wave or a large spike in rural counties, where people are traveling in the summer months, requires ongoing vigilance and state coordination, Whitmer said. In addition, the state's path back to normal will need continued guidance. 

"Life will not be back to normal for some time to come," she said.

The continuing state of emergency seemed to prompt the request to Michigan's high court from Maloney, who wrote that he didn't want to "interpret a novel question of state law for the first time."

A federal judge may certify a question to the high court when there is a legal issue or term that arises in federal litigation but depends on state law for its meaning, said Justin R. Long, an associate professor at Wayne State University Law School.

Certification is uncommon, but not extraordinary, Long said, adding that it likely happens nationwide about "a dozen times a year." 

Typically, Long said, "state high courts are much more likely to grant a federal judge’s request to decide something like this than they are to accept an appeal from a lower court."

In the Grand Rapids case, while the ban on non-essential procedures has been lifted, Whitmer's executive orders still apply to the medical centers because they now require the businesses to comply with new workplace safety requirements, Maloney said. 

When asked Wednesday how the state would gauge when it had passed the point of the risk of a second wave of COVID-19 cases, Chief Medical Executive Dr. Joneigh Khaldun said the state will be monitoring case numbers, hospital capacity and testing capacity, but there will be no "special number" that will signal the state is free to go back to normal.

"Until we have an effective antiviral or a vaccine that's not just available but ... people are getting the vaccine broadly, we’re going to have to live in kind of a different way across the state," Khaldun said.