Jacques: Governor's unchecked powers need some checks
Visit any beach town or park in Michigan, and you’ll see just how ready people are to return to their normal lives.
They shouldn't get too excited.
In an interview with CNN Tuesday, Gov. Gretchen Whitmer said: “I am not going to be bullied into moving before it’s safe. If we have to move back, we’re gonna.”
Whitmer followed up Friday with an order tightening mask requirements, telling businesses open to the public “to refuse entry or service to people who refuse to wear a face covering.” She is also now requiring individuals to wear masks in “crowded outdoor spaces.” Those who disobey face a misdemeanor charge and are subject to a $500 criminal penalty.
She also issued an executive order Thursday forcing health care workers to undergo implicit bias training, which is a huge intrusion into the private sector.
The governor's latest actions indicate she will almost certainly extend the state of emergency, currently set to expire July 16. And she's making these decisions alone.
That’s exactly what Republican legislative leaders in Michigan, as well as businesses, fear.
It’s her unilateral control over the lives of 10 million people since early March that has spurred several lawsuits challenging the governor’s interpretation of state laws. While COVID-19 is an unprecedented challenge, Whitmer’s wielding of her powers is also unprecedented.
Last week, a ballot proposal to limit the governor’s emergency powers got the green light from the Board of State Canvassers. The Unlock Michigan petition drive will need to collect more than 340,000 signatures within 180 days. If it does, then the Legislature will have the opportunity to approve the measure without having to worry about Whitmer’s veto.
The timing is essential.
“Based on other recent initiatives, it’s possible they will need all 180 days just to ensure it got to the Legislature by lame duck, so they barely got started in time,” says John Sellek, CEO of Lansing-based Harbor Strategic Public Affairs.
Whitmer's threats to once again restrict the freedoms and the rights of Michigan citizens — including shuttering bars, restaurants and barbers — could do permanent damage to the state economy, which already has one of the worst unemployment rates in the country following stringent stay-home restrictions.
The Unlock Michigan campaign is smartly harnessing Owosso barber Karl Manke, who became the face of the frustration many Michiganians felt when he defied the governor’s orders and started cutting hair in May, which he says he did out of financial duress.
“Let us never allow a governor to have the power to decide alone to lock us down again without being accountable,” Manke says in a video on the ballot committee’s website.
Unlock Michigan seeks to repeal the 1945 Emergency Powers of Governor Act that Whitmer has used as justification for her continued extensions of the state emergency without any legislative input.
Another 1976 law related to a governor’s emergency powers spells out a governor must get legislative approval for an extension after 28 days. That law would stay in place.
Governors should have wide authority to make tough decisions when states face dire threats. But giving one elected official so much power for so long, without any checks and balances from the Legislative branch of government, is alarming.
Republican legislative leaders filed a lawsuit against the governor’s use of her powers earlier this spring, after she ignored their attempts to get involved. That case is still moving its way through state courts and awaits a Court of Appeals decision that should come in August.
The Michigan Supreme Court also has agreed to consider a west Michigan federal judge’s request to clarify Whitmer’s emergency powers, stemming from a separate lawsuit brought by three medical practices that were unable to provide care, and a patient who couldn't receive a planned surgery as a result of Whitmer’s order banning non-essential medical procedures. The Mackinac Center Legal Foundation and Miller Johnson are representing the plaintiffs.
But the state’s High Court won’t hear oral arguments until Sept. 2 following the Court of Appeals ruling.
Senate Majority Leader Mike Shirkey, R-Clarklake, has been growing increasingly frustrated with the governor’s power trip. He says the Unlock Michigan petition effort is “addressing something that is a problem,” but he declined to say whether he is more involved. Shirkey previously indicated he'd be supportive of a ballot initiative.
Whitmer has called any attempt to limit her powers during a crisis “dangerous” and “foolish.”
Yet backers of these efforts to rein in her power believe it’s dangerous not to set boundaries on that authority.
As Patrick Wright, director of the Mackinac Center Legal Foundation, stated: “While COVID-19 still presents an extraordinary challenge, we have moved long past the point where unilateral decisions are justified. It is time to return to our normal constitutional order, where the separation of powers exist to protect our rights.”