Michigan Senate votes to repeal law that bolstered Whitmer's COVID-19 response

Craig Mauger
The Detroit News

Lansing — The Republican-controlled Michigan Senate voted Thursday to repeal a state law that powered Democratic Gov. Gretchen Whitmer's initial response to the COVID-19 pandemic.

The Senate's 20-15 vote, along party lines, provides the GOP-controlled state House the opportunity next week to finalize Unlock Michigan's repeal of the 1945 Emergency Powers of the Governor Act, which previously allowed the governor to keep emergency declarations in place without legislative input. Because the repeal proposal is the result of an initiative campaign, Whitmer cannot veto it.

While the law was struck down by the Michigan Supreme Court in October, the Senate approval is still a victory for opponents of Whitmer's response to the pandemic, which often relied on unilateral orders. For more than 15 months, Republican lawmakers have clashed with the Democratic governor's administration over her actions.

Senate Majority Leader Mike Shirkey.

"This initiative represents a people’s veto of this governor and the unlimited power she’s tried to claim during this pandemic," Sen. Tom Barrett, R-Charlotte, argued in a speech on the Senate floor.

Barrett said a separate state law that will remain on the books and allows a governor to keep an emergency declaration in place for 28 days was sufficient and properly balances the separation of power with the need for immediate action.

Senate Majority Leader Mike Shirkey, R-Clarklake, said the proposal was an example of what citizens can do when they believe their government is "out of control."

"This doesn't take power away," Shirkey said. "It just reassesses where the power belongs."

But Democratic lawmakers slammed the repeal, saying it was driven by politics and contributions from undisclosed donors. A nonprofit organization called Michigan Citizens for Fiscal Responsibility, which doesn't have to report the sources of its money, provided about $1.9 million in funding for the Unlock Michigan campaign.

The repeal will strip a future governor of the ability to make quick decisions in response to a pandemic or disaster. Sen. Mallory McMorrow, D-Royal Oak, said it will slow down the state's response because a governor will have to wait on the Legislature's decisions. Lawmakers can take longer to act. And during COVID-19 pandemic, there were times when multiple legislators couldn't attend sessions because they had the virus, she noted.

"I can’t in good conscience put the lives of Michiganders at risk," McMorrow said.

Unlock Michigan launched its effort to repeal the 1945 law in June 2020. By gathering petition signatures from more than 340,047 from registered voters, the group was able to get its proposal before the Legislature without Whitmer having a say. On Tuesday, the Board of State Canvassers certified that Unlock Michigan had collected enough signatures to advance its repeal policy to lawmakers.

Opponents have questioned the signature collection processes of Unlock Michigan. amid claims of wrongdoing by individuals who helped with the campaign. Democratic Attorney General Dana Nessel had previously announced she wouldn't bring any charges after the investigating allegations.

Sen. Jeremy Moss, D-Southfield, said he would reintroduce legislation to hold ballot organizations liable if a signature gatherer makes false statements about a petition.

“We just cannot continue to allow people like those who worked on the Unlock Michigan campaign to use lies and manipulation to erode the credibility of the Democratic system for the rest of us,” Moss said.

For decades, the 1945 law allowed a governor to declare a state of emergency and keep it in place unilaterally. Under the declaration, the governor could take sweeping actions, such as suspending state laws and requiring people to stay home.

The policy became a target among conservative activists who opposed Whitmer's COVID-19 restrictions and argued that it violated the balance of power between the legislative and executive branches. Republican legislative leaders took the matter to court.

The Michigan Supreme Court ruled the law unconstitutional on Oct. 2, the same day Unlock Michigan submitted its petition signatures to the Bureau of Elections. Despite the court decision, supporters of Unlock Michigan, which has ties to state Senate Republicans, want the law formally repealed in case a court later tries to revive the law.

After the Supreme Court ruling, the Whitmer administration used the state's public health code, which allows the state health director to issue orders, to take actions to respond to the pandemic.