Whitmer's response: Legislature's lawsuit a 'power grab'

Craig Mauger
The Detroit News

Lansing — Gov. Gretchen Whitmer's legal team issued a blistering response Tuesday to the Michigan Legislature's challenge against her emergency powers, arguing Republican lawmakers sought "to build a constitutional crisis atop a public health crisis."

The GOP-controlled House and Senate last week sued the Democratic governor in the state Court of Claims, contending that she had exceeded her authority in continuing unilateral actions to combat the COVID-19 pandemic.

Three assistant attorneys general and one assistant solicitor general filed the governor's response in court Tuesday ahead of oral arguments on Friday.

Gov. Gretchen Whitmer speaks about the spread of COVID-19 in Michigan during a press conference in Lansing on Thursday, March 26, 2020.

"Having lost that political gamble, they are doubling down on this lawsuit," Whitmer's legal team argued. "But this is more than a political bluff for a dissatisfied coequal branch of government holding a losing hand under applicable law."

"It is a power grab cloaked in the fineries of unfounded legal reasoning. ..."

House Speaker Lee Chatfield, R-Levering, and Senate Majority Leader Mike Shirkey, R-Clarklake, asked for a declaratory judgment, which means they wanted Court of Claims Judge Cynthia Stephens to resolve legal uncertainty around Whitmer's emergency powers.

The focus of the fight is whether two decades-old state laws grant the governor the power to continue a statewide emergency declaration for longer than 28 days without the approval of the Legislature. The emergency declaration is what allows the governor to issue unilateral orders, like her stay-at-home restriction.

The legislative leaders also argued Whitmer made an unconstitutional grab of power with her orders by violating the separation of powers in state government.

Whitmer’s “recent actions seize lawmaking power from the Legislature in service of a new executive-domineered legal regime," according to the lawmakers' suit. "In doing so, Defendant takes control of matters at the core of the Legislature’s constitutional mandate. And she does so under no discernible standards or time limits, save vague insistences that an ‘emergency’ requires them.” 

Senate Majority Leader Mike Shirkey, R-Clarklake, left, and House Speaker Lee Chatfield, R-Levering, announce a lawsuit against Gov. Gretchen  Whitmer's emergency powers on Wednesday, May 6, 2020.

The governor's lawyers countered Tuesday that Whitmer has a duty to declare a state of emergency if an emergency exists under laws put in place by lawmakers themselves.

Lawmakers want the court to "referee this political disagreement and do their legislative work for them," the governor's lawyers wrote.

If the Legislature doesn't like the requirements of the laws — one from 1945 and one from 1976 — legislators can vote to change them and gather the two-thirds support required to override a veto, Whitmer's legal team said.

The 1976 Emergency Management Act allows the governor to declare a state of emergency but to get the approval of the Legislature after 28 days. The Legislature refused to sign off on an extension on April 30.

The 1945 Emergency Powers of the Governor Act (EPGA) also allows the governor to declare an emergency but seems to give the governor the ability to decide when to rescind it.

On April 30, Whitmer issued new emergency declarations under both laws through May 28.

Republicans argued that the 1945 law "was intended to address local crises in the vein of civil disturbances in an area within the state — not statewide health emergencies."

Whitmer's response countered that the law, which mentions designating an "area" of the state, didn't prevent the governor from declaring a statewide emergency

"The State is the 'area involved,' and under the plainly stated language and intent of the EPGA, the Governor is fully authorized to designate that area and respond accordingly," the response said.

The attorneys representing Whitmer were Christopher Allen, assistant solicitor general, and Joseph Froehlich, Joshua Booth and  John Fedynsky, assistant attorneys general.