The Michigan Court of Claims heard oral arguments today in the lawsuit against Gov. Gretchen Whitmer and her use of authority during the COVID-19 pandemic, which was done virtually and live-streamed on YouTube.
Following civil unrest and armed demonstrations at the Capitol Building in Lansing, the Republican led House and Senate have brought a suit against the Democratic governor stating that she has acted beyond her scope of power and is not adhering to the guidance of the Legislature.
“Given the clear affront to the separation of powers and the clear infringement on the Legislature’s law-making power,” Michael Williams, lawyer representing the Republican party, said, “we would contend that the Legislature is properly empowered and has standing to move forward with this case.”
The lawyer representing Whitmer in this case, Christopher Allen, contends that the Legislature is “perfectly able” to introduce bills, pass laws, hold hearings, and “do all the things that a Legislature does.” According to Allen, there is no “institutional disruption” incurred by the Legislature as a result of Whitmer’s orders.
The Legislature has been “deprived” of the tools they would traditionally possess in order to control the pandemic, Williams said.
Since the expediency to take action on the emergency has passed, Williams said that Whitmer’s “generalized, all-encompassing power” must be checked by the Legislature.
Stating that there is no dispute as to whether or not a crisis currently exists in Michigan, Judge Cynthia Stevens told the lawyers that “The issue here is purely whether the governor’s actions were alter various either under the Constitution of the state of Michigan under the Emergency Management Act (EMA) or under the Emergency Power of Government Act (EPGA).”
“This (case is) a question of whether a governor, this governor or any governor in the future, can exercise, effectively, limitless, unilateral, temporally unbounded authority, exercising the lawmaking power of this state for as long as the governor wishes,” Williams said.
Under the EMA of 1976 (30.403, section 4), there is a statute which upholds that declared states of emergency by the governor cannot exceed 28 days without an extension granted by the Legislature. On April 30, one minute after the state of emergency and disaster declaration terminated, Whitmer created new orders, Executive Order 2020-67 and 2020-68, effectively re-declaring a state of emergency and disaster without approval from the Legislature.
This was a clear violation of the statute, argued Williams.
The judge agreed that “one minute is certainly not enough.” Although she did wonder if in the future, perhaps if a second wave were to arise in the fall, the governor would be able to declare a state of emergency and disaster since it is still related to COVID-19.
“(If) there is either a different mutation of COVID-19 or a rapid resurgence, is that a new emergency triggering a new 28-days?” Stevens asked Williams.
Citing different language under the statute, Williams contended that the court would, in the future, be tasked with determining whether a “new type of disaster, new areas threatened, new conditions causing the disaster and new conditions permitting terminating of that state” are present at that time.
“There is no contention whatsoever that the conditions as of one minute after the termination had materially changed in these four regards between the termination and the second declaration” Williams said.
Williams asserted that Whitmer has not set consistent parameters that she is following to determine the conditions under which she would terminate the disaster and emergency declaration. She has suggested that the conditions would not be relieved until a vaccination was created, which could possibly bring us to 2021 or 2022 while other times she has said she wouldn’t do so until the economic consequences are relieved, which economists project could last years, according to Williams.
“Based on her construction, where if she just continues to view there to be an emergency or disaster that she can turn on and off with a ministerial act of terminating and re-declaring,” Williams said, “we would be talking about the exercise of executive power with no Legislative input for a period of years based on the exact same conditions that existed that precipitated the declaration back in March and April.”
The judge and Allen debated back and forth as to whether Whitmer was legally allowed to have one emergency order expire and re-declare that very same emergency moments later. Stevens questioned what the Legislature would be able to do if Whitmer continually re-issued executive orders without support of the House and Senate.
“So long as she (Whitmer) perceives, validly or invalidly, that there is an emergent condition, she can terminate one order and start another for as long as she deems appropriate and the Legislature would have no role under the EMA to do anything about it?” Stevens asked Allen. “Yes or no?”
Allens fumbled to respond stating that “validly or invalidly” is the essence of the matter.
Stevens responded to Allen saying this is “probably the worst argument you have.”
The judge has not yet reached a decision and said that whenever she does, it “will certainly not be the last word,” as she predicts it will be appealed and sent to the Michigan Supreme Court.