House approves bills to curb governor's powers in late night 'lame duck' session

Beth LeBlanc
The Detroit News

The GOP-led Michigan House adopted several pieces of legislation to curb Gov. Gretchen Whitmer's emergency powers in an hours-long session that started Thursday morning and ended after midnight Friday. 

Some of the legislation appears fated for the governor's veto pen, while the practical effect of a concurrent resolution that could suspend state health orders remains unclear. 

Among the bills passed was one to limit the emergency powers of the Department of Health and Human Services to 28 days, with any extensions requiring the approval of lawmakers.

The measure is likely to be vetoed by Whitmer, whose own emergency powers were overturned by a Michigan Supreme Court ruling in October. After the ruling, Robert Gordon, the Department of Health and Human Services director, issued similar orders, from mask mandates to indoor dining closures, as epidemic orders under the public health code.

Passed earlier this month by the Senate, the House passed the bill 59-44 with some key changes that would stop local or state health department from banning a religious practice or limiting capacity at a place of worship.

The Michigan House voted Thursday night to limit the emergency powers of the Department of Health and Human Services to 28 days, with any extensions requiring the approval of lawmakers.

Whitmer’s administration so far has protected people attending worship services and the people holding them by exempting them from penalties associated with violations of her emergency orders and, later, the health department’s orders. Still, many churches have put in safety and capacity measures.

Whitmer's office earlier this month defended the governor's actions and accused the Legislature of attempting to "tie the governor's hands" with the 28-day limit.

The House version of the bill also exempts businesses from ordered closures if they comply with health and safety precautions required of other businesses allowed to continue operating.

Rep. Ben Frederick, R-Owosso, argued the time limit was sorely needed to ensure the Legislature was part of the COVID-19 response and could provide transparency to constituents on the process. Nine months into the pandemic, Frederick said, he was still unable to cite a single benchmark to constituents asking what numbers were eneded to loosen restrictions.

“There is nothing you can do to be deemed safe within recently targeted sectors,” Frederick said, noting the end of dine-in services at restaurants. He insisted state legislators were not blind to the “severity of the situation” but, he said, there needed to be more transparency in the process.

“You can care and have concerns about how we’re doing this,” Frederick said. “It’s not a binary choice.”

Rep. Thomas Albert, R-Lowell, stressed the importance of ensuring religious protections even in the event of an emergency, noting churches have been taking measures on their own to protect members.

“I’ll put this simply: The government has no right, it has no authority to prevent a person, whether Catholic or any other faith, from freely exercising their sincerely held religious beliefs,” Albert said. “It is flatly unconstitutional and it is un-American. Some things cannot be done over Zoom.”

Emergency law repeal

As the session dragged into the early hours of Friday, the House also voted 57-43 to repeal the 1945 Emergency Powers of the Governor Act, which underpinned Whitmer's emergency orders this spring and was declared an unconstitutional delegation of legislative power by the Michigan Supreme Court in October.

Rep. Yousef Rabhi, D-Ann Arbor, called the repeal irresponsible. While lawmakers decry government tyranny, they're ignoring the tyranny of the virus that the governor is working to address, he said. 

"What about the tyranny of death?" Rabhi said. "What are we going to do about it as a body?”

If the Legislature were voting to adopt the law today, it would be deemed an inappropriate delegation of power, said Rep. Aaron Miller, R-Sturgis. In that sense, it should be repealed, he said. 

"It is too high a level of power," he said. "It is handing over the keys. And I agree that repealing this act is the right thing to do.”

Committee could suspend orders

The House and Senate adopted a concurrent resolution to establish a committee with the ability to meet between sessions to suspend administrative rules between the end of December and early January. 

The resolution appears to give the Legislature the ability to suspend Department of Health and Human Service's epidemic orders, which have been used in recent months to mandate mask usage, scale back restaurant activity, and close high schools and colleges to in-person learning. 

The six-member Joint Committee on Inter-Session Rules and Regulations would consist of two Senate Republicans, three House Republicans, a Democratic senator and a Democratic representative.

The committee would have the authority between the end of the current session and the start of the new session on Jan. 13 to suspend any regulations or rules established by an administrative agency after the end of session. 

It's unclear whether the committee would retain the same authority should the state extend its epidemic orders before the end of session. 

Health care immunity

The House on Thursday also voted 58-45 to adopt a bill that would provide immunity to health care providers and facilities that provided health care services in support of the state’s COVID-19 pandemic.

Providers would be protected from liability unless an injury was inflicted because of willful misconduct, gross negligence or willful criminal misconduct. The bill would apply retroactively, between March 28 and July 14 and between Oct. 29 and Feb. 14, 2021.

Whitmer’s emergency orders in the spring provided some immunity for health care workers, and similar bills have been proposed in recent months to continue and increase immunity. But they have been met with some opposition out of concern the legislation would allow bad actors to elude repercussions.

Rep. Matt Koleszar, D-Plymouth, cited similar reservations on Twitter Thursday night.

“I voted NO because it provides immunity for services ‘regardless of how, under what circumstances, or by what cause those injuries were sustained,’” Koleszar said. “That’s too far.”