McQuade: Governor's action to save lives has been swift, lawful
For the past eight weeks, Gov. Gretchen Whitmer has carefully exercised her emergency powers under the law to protect the people of Michigan and save lives. She has taken swift, decisive action to slow the spread of COVID-19 and prevent hospitals from exceeding capacity, responding nimbly to ever-shifting circumstances.
Republican lawmakers have filed lawsuits challenging Whitmer’s emergency orders. These lawsuits lack merit and seem designed more to score political points than to achieve legal remedies.
Laws enacted in 1945 and 1976 empower Michigan’s governor to declare an emergency and to issue orders that are reasonably necessary to protect life and property. As a federal prosecutor during the Engler, Granholm and Snyder administrations, I participated in statewide crisis response exercises, and saw how important it was for a governor to be empowered to act quickly during an emergency.
To ensure timely action during a crisis, lawmakers delegated these powers to the executive branch, rather than the Legislature, where the political process can slow things down.
Whitmer has made full use of these powers. Since COVID-19 was first discovered in Michigan, she has made tough choices to shutter school buildings, close places of public accommodation and ban public gatherings. These orders were needed to protect lives, and are in line with actions taken by Republican and Democratic governors in neighboring states.
And yet, Republican legislators have now filed lawsuits challenging the powers enacted by their own body. Legal claims vary from frivolous to weak. According to the 1945 law, the Legislature intended to give the governor “broad power of action” during a crisis. In light of this expansive scope, the Michigan Court of Claims has already rejected one effort by private parties to overturn Whitmer’s orders. The other cases seem destined for similar outcomes.
One argument is that Whitmer cannot extend the emergency orders beyond 28 days without the Legislature’s consent, which it has declined to give. My colleague at the University of Michigan Law School Richard Primus called this argument a “dead-up loser.”
That’s because only the 1976 law, which gave additional powers to the governor, requires consent. The 1976 law also says it does not “limit, modify, or abridge” the governor’s authority under the 1945 law, which gives her sole power to declare an emergency and issue orders. If the Legislature wants to change the law, it has the power to do so by a veto-proof majority. Until then, these powers belong to the governor.
Whitmer is not the first governor to use these emergency powers. Gov. Rick Snyder declared emergencies surrounding the Flint Water Crisis and a sinkhole in Fraser. Many of the legislators who are still serving today voted to approve extensions for those declarations, even though COVID-19 has killed more than 4,500 people in Michigan, an indication that their opposition has more to do with politics than sound crisis management.
Whitmer has used her emergency powers with care, limiting the duration of her orders and renewing them only as necessary. She has continuously respected constitutional rights, and has been guided by data and recommendations from experts. She has relaxed restrictions as the situation has evolved. This is exactly the kind of swift action our Legislature envisioned in 1945, a less partisan time, when it saw the wisdom of empowering a governor to protect the people who elected her.
Barbara McQuade is a professor at the University of Michigan Law School and served as the United States Attorney for the Eastern District of Michigan from 2010 to 2017.