Opinion: Legislature must stop Whitmer now

Dennis Lennox

Term limits get unfairly blamed for much of what is wrong in Lansing; however, the state’s ongoing response to the coronavirus pandemic is an example of why term limits are bad.  

Just look at how Gov. Gretchen Whitmer has responded, at least when she isn’t auditioning to be Joe Biden’s running mate. Her natural inclination is absolutism and authoritarianism.

Yet, the vast majority of criticism from majority Republicans in the Legislature has been focused on the economic consequences of her actions. Almost entirely ignored is the constitutional crisis caused by Whitmer ruling by decree. 

I suppose the thinking is that more Michiganians care about the economy — to borrow the line from Bill Clinton’s 1992 strategist, James Carville, “It's the economy, stupid” — than the Michigan Constitution.

Even if true, I expect better from legislators. Then again, some of those currently serving in the Legislature have privately admitted to never reading the Constitution. 

There is little question that legislators in a different Legislature, a Legislature in the era of pre-term limits, would have been more forceful in their defense of constitutionalism. 

Whitmer’s power grab has come through the exercise of what amounts to the royal prerogative used by Charles I during his period of personal rule. There is just a major problem: The prerogative is nonexistent under the Constitution. It’s also repugnant to the tripartite system of government, in which the Legislature is the first branch. 

Michigan Gov. Gretchen Whitmer gives her morning coronavirus pandemic address via livestream on Monday, April 13, 2020.

I will cede that the governor has certain emergency powers under two wartime-era laws, the Emergency Powers of Governor (Second World War) and Emergency Management Act (Cold War). This includes the authority to issue a stay-at-home order.

What doesn’t pass muster are Whitmer’s decrees suspending at least two statutes, the Freedom of Information and Open Meetings acts. Neither of the laws granting emergency powers to the governor provide for the suspension, amendment or other modification of duly passed laws by the executive branch. 

Yes, the Emergency Powers of Governor Act, which is essentially an expanded version of the old riot act, allows the governor to issue “orders, rules, and regulations.” However, at no point in the law is there a provision for the suspension, amendment or modification of laws by the governor. 

This is usually when Whitmer’s allies invoke the more recent law, the Emergency Management Act. 

Under the 1976 law, “the governor may issue executive orders, proclamations, and directives having the force and effect of law.” This is unconstitutional because only the legislative branch can legislate under long-established doctrines. Moreover, the Constitution explicitly prohibits one branch from exercising “powers properly belonging to another branch.” 

More simply put, the governor cannot broaden her own emergency powers. 

The Emergency Powers of Governor and Emergency Management acts should be repealed and replaced by a streamlined act that preserves essential aspects of the present laws and prevents any kind of power grab or undermining of the separation of powers.

If Speaker of the House Lee Chatfield and Sen. Mike Shirkey, the Senate majority leader, fail to act then Whitmer’s proclivity for absolutism and authoritarianism will become a precedent that can be invoked in the future for more Draconian power grabs and unconstitutional acts by her or a successor. 

Dennis Lennox is a political commentator and public affairs consultant.