Opinion: Legislature needs to balance Whitmer's virus response
Even as the death toll continues to rise, many Michigan residents are chafing under Gov. Gretchen Whitmer’s attempts to address the spread of COVID-19. Her latest executive order extended past restrictions on businesses, travel, social gatherings and many other activities through April 30.
It also sought to “clarify” or even expand certain restrictions, including now banning travel between residences for those owning more than one home. Criticisms also extend to provisions that do not allow home improvement stores to sell paint and that refuse to designate landscapers as essential workers.
Among those who think Whitmer has gone too far, the next question pertains to the appropriate response. Some will leave it to social media posts. Others now circulate a petition seeking to recall her from office.
Their best answer resides in another part of Michigan’s government: the Legislature. Leaders in the Michigan Legislature have criticized the new order, including Speaker of the House Lee Chatfield and Senate Majority Leader Mike Shirkey. Moreover, members of both chambers already intervened individually to modify aspects of past orders. As a legislative body, they have power to do much more if they so choose.
Michigan’s constitution, like our national one and those of most other states, distributes its power among three branches — a Legislature, governor and courts. The relationship between those branches stems from the relationship between the powers our constitution gives them.
Whitmer has acted to combat the coronavirus through executive orders. Such orders, by michigan.gov’s own description, involve governors exercising the state’s executive power. Executive power by definition enforces existing laws.
The COVID-19 orders have recognized this relationship between Whitmer’s actions and prior law. She grounds her orders in two legal sources. The first is Article 5, Section 1 of the Michigan Constitution. This provision vests the executive power in the governor.
But that constitutional provision says nothing about what law enforcement actions a governor can take, only that she can take those given by law. For that part, Whitmer then turns to two Michigan statutes — the Emergency Management Act and the Emergency Powers of the Governor Act of 1945 — as the ground of the particular actions taken to address COVID-19.
Therefore, the specific grounding for her executive orders resides in laws passed by the Michigan Legislature. Without them, she acts outside or even contrary to law, not in accordance with it.
Here is where Michigan’s House and Senate come in. As the source of Whitmer’s executive power, they possess the capacity to redirect it. They can amend the statutes on which the governor bases her actions. More to the point now, they could pass legislation that amends the current executive order to align with what they think best for the health — physically and economically — of the state of Michigan. Perhaps better lines can be drawn between essential and non-essential workers. Or maybe reasonable deviations between hot spots and other regions in the state could work.
Any such statutes would outweigh any contrary executive order. After all, such orders exist to carry out legislatively-enacted regulations, not replace or negate them.
In taking up this option, the Michigan Legislature could interject other voices into the discussion. The immediate onslaught of the virus best suited the energetic action of a solitary governor. The ongoing assessment of the situation calls for deliberative contributions by the legislative branch. That means the governor will continue to be an integral player in the discussion. But she will be a part, not the whole.
Along these lines, the Legislature already exercised its own judgment in extending the governor’s emergency declaration through April 30, not into June as she requested. This back-and-forth should continue, not just behind the scenes but formally through the legislative process. Doing so will strengthen our attempts to address this pandemic, clarifying our options and our government’s responsibility.
COVID-19 has created a series of crises in Michigan, including to our health and to our economy. Let the people’s representatives, as well as their governor, address these crises together.
Adam Carrington is assistant professor of politics at Hillsdale College.