Editorial: Legislature's lawsuit is necessary, reasonable

The Detroit News

The lawsuit filed by the Legislature is being broadly miscast as an attempt to strip Gov. Gretchen Whitmer of her powers to manage Michigan through the COVID-19 crisis.

That's not at all what legislative Republicans are attempting to do in suing the governor. What they're asking for is a restoration of their Constitutional authority to provide oversight of an executive who has unilaterally declared herself the sole and absolute power in Michigan.

Senate Majority Leader Mike Shirkey, R-Clarklake, left, and House Speaker Lee Chatfield, R-Levering, announce a lawsuit against Gov. Gretchen  Whitmer's emergency powers on Wednesday, May 6, 2020.

The lawsuit filed this week in the Court of Claims says just that: "... the Legislature is not asking the Court to declare that the Governor’s policy decisions are bad policy or that she has no role to play in controlling COVID-19.

"Rather, the Legislature is merely asking the Court to affirm Michigan’s constitutional structure: that the Legislature makes the laws and the Executive enforces them."

More:Michigan House, Senate sue Gov. Whitmer, call emergency powers 'invalid'

That is a reasonable and necessary demand. This is not a choice, as it has been presented by the governor, between throwing the state wide open in the midst of a pandemic or allowing the governor to continue to exercise emergency powers until the crisis passes. 

At issue is whether the law actually intended for a governor to have the sole authority to keep the state under a state of emergency for as long as she pleases, and do whatever she pleases during that period.

The confrontation between the executive and legislative branches is enabled by two state laws, one passed in 1945 and one in 1976, that have seemingly conflicting language. The first makes no provision for legislative oversight of emergency, while the second clearly does.

Whitmer has exploited the confusion to hop between the two laws and bypass the Legislature whenever it suits her purposes.

Ideally, lawmakers would pass a new law to clarify both the governor’s powers and theirs during an official emergency. But Whitmer has threatened to veto any such legislation.

Senate Majority Leader Mike Shirkey has pledged a citizens initiative to change the law. But that will take time, and gathering signatures during a shutdown is an iffy proposition.

The courts must provide the clarity now absent in the two laws. 

This should not be viewed as yet another petty, partisan fight. The consequences are enormous, and will determine whether Michigan remains a representative democracy even in times of crisis.

The state Constitution exists to protect citizens in times such as these, when the temptation for one branch of government to exploit fears to grab power from other branches.

Whitmer’s action is indefensible and unwarranted. The Legislature had been cooperating with her, and had generally supported the scope of her orders except when they defied common sense and seemed more rooted in stubbornness than sound policy. 

Republicans offered to extend her emergency orders and consider periodically renewing them, with their input and oversight.

That is how government must work, even in a crisis, but Whitmer rejected the offer. The court should affirm that separation of powers and checks and balances don't go away when a virus strikes.