On the afternoon of April 30, militia members toting assault rifles glared from the Michigan state Capitol’s galleries as the Republican-controlled Senate and House voted to reject Gov. Gretchen Whitmer’s proposed extension of her stay-at-home order.
But the show of force failed in its main objective. Though GOP leaders argued that the Democratic governor needed the Legislature’s approval to extend the order, she went ahead that evening and unilaterally extended it through May 28.
“We remain in a state of emergency. That is a fact,” Whitmer said during a virtual town hall, stressing that the order aimed to slow the deadly spread of the coronavirus.
But the fight is only getting started for the Republicans, who are cooking up two new attempts to strip power from Whitmer and give it to the Legislature. On Wednesday, Senate and House leadership unveiled a lawsuit that asks a judge to force her to seek approval from lawmakers in extending the emergency order.
On Monday, Senate Majority Leader Mike Shirkey announced that GOP activists will concurrently attempt to exploit an unusual loophole in the Michigan Constitution that allows the House and Senate to enact so-called citizen-initiated legislation without approval from the governor or voters. They plan to use it to repeal the 1945 law that gives Michigan governors emergency powers that don’t require legislative approval.
Shirkey did not return a request for comment.
The moves feel like deja vu in a state only 18 months removed from a dramatic lame-duck battle in which the GOP attempted to ram through a series of laws designed to steal power from Democrats as Whitmer readied to replaced a Republican as governor following the 2018 election.
“What they’re doing (now) is looking for any way they can to cut back on [Whitmer’s] powers,” said Mark Brewer, a Michigan attorney who practices constitutional law and is a former head of the state Democratic Party. “This is part of an ongoing effort by the GOP and these are things that they would never do to a Republican governor ― never.”
Whitmer spokeswoman Tiffany Brown called the lawsuit “just another partisan game that won’t distract the governor. Her number one priority is saving lives. She’s making decisions based on science and data, not political or legal pressure.”
Battle In The Courts
Few states have been hit harder by the coronavirus outbreak than Michigan. As of Wednesday, the state tallied about 45,000 confirmed cases and more than 4,250 deaths from COVID-19, the disease caused by the new coronavirus. Whitmer’s executive orders in some ways are among the nation’s strictest, though she relaxed some restrictions on April 30.
The impending legal battle is one of dozens across the country headed for the courts stemming from coronavirus-related restrictions, and it comes just after U.S. Attorney General William Barr tapped a federal attorney based in Michigan to investigate the constitutionality of state and local officials’ stay-at-home orders. In Wisconsin, many observers expect a highly partisan state Supreme Court with a Republican majority to rule against Democratic Gov. Tony Evers in a similar case it’s hearing this week.
In Michigan, the sense among constitutional experts is that Republicans are less likely to prevail. The GOP leaders contend that state law requires Whitmer to seek approval for an extension of her stay-at-home order after 28 days. But Richard Primus, a constitutional law professor at the University of Michigan, disagrees. He said state law clearly doesn’t require that and called the GOP case a “dead-up loser.”
“The mystery is why people argue about it,” Primus said. “It’s possible that they just haven’t read the law carefully. It’s also possible that people do know [how the law reads], but it’s good posturing to claim that the governor is overstepping.”
The 1945 law grants Michigan governors the authority to declare a state of emergency, issue executive orders and determine when an emergency is over. Republicans argue that the state’s 1976 Emergency Management Act requires governors to obtain the Legislature’s approval to extend an order beyond 28 days. But Primus noted that the 1976 law gives governors more emergency powers than the 1945 law. It’s the additional powers granted in 1976 that need the Legislature’s approval for an extension, not the state of emergency authority.
Primus pointed to a section of the 1976 act that says it does not “limit, modify, or abridge” the governor’s authority under the 1945 law. Well over 100 years of common law also supports Whitmer’s order, Brewer said, noting that governors in both parties have used emergency orders during the Civil War, Great Depression and a disturbance over race issues in 1943.
Primus said he philosophically agrees that a governor’s emergency powers should be time-limited and eventually require a legislative check, but added, “Michigan law says something different.”
Moreover, the state court system isn’t necessarily favorable to the GOP. While the party holds a 4-3 advantage on the Michigan Supreme Court, the justices frequently don’t rule along party lines. Republicans may have an easier path through the federal court system. The U.S. District Court for the Western District of Michigan and the 6th Circuit Court of Appeals that handles cases from the state are mostly packed with GOP appointees.
A suit filed in federal court on Monday by U.S. Rep. Paul Mitchell (R-Mich.) alleges executive overreach and that Whitmer’s orders violate a wide range of constitutional protections, such as his right to association, because the restrictions bar him from visiting family members.
That suit, said James Hodge, a constitutional law professor at Arizona State University’s Center for Public Health Law and Policy, is “dead on arrival.”
He called the right to assembly claim “ridiculous.”
“We always recognize with every constitutional right that there are limits, and you don’t get to assemble in emergencies or non-emergencies when that could pose a risk to the public’s health,” he said.
While federal case law favors governors, it only takes one unfavorable ruling to spark a legal “wildfire” that could upend the orders, Hodge said. The Michigan and Wisconsin cases are two that could do just that.
A Constitutional Loophole
The GOP has another route to try to force change outside the courts. The state’s Constitution allows citizens to initiate legislation or propose amending it via petition drives that put the proposals in front of voters. If approved, the measures become law. The citizen-initiated ballot proposal process in 2018 led to the legalization of marijuana and the creation of an independent redistricting commission to address gerrymandering.
The law also allows the Legislature to enact citizen-initiated proposals into law once groups collect enough signatures to get the proposals on the ballot but before they go in front of voters. In such cases, the Legislature doesn’t need approval from the governor to make the proposals law. That creates a scenario in which the approximately 400,000 voters needed to sign a petition and the Legislature can work together to enact laws without approval from the governor or the rest of the electorate.
Legal experts say the provision exists to streamline the citizen-initiated ballot process by giving the Legislature an option to avoid spending resources for a statewide vote on popular initiatives.
However, conservative activists are using the loophole to ram through unpopular legislation while the GOP controls both legislative chambers. Republicans successfully used the maneuver to repeal Michigan’s popular prevailing wage law in 2018 and are close to successfully enacting some of the nation’s strictest limits of abortion rights.
The 400,000 signatures could be difficult to collect during a pandemic, and the process would also take at least six months. But Brewer noted that the state’s Republican activist network is able to carry out such efforts because it’s well-funded by wealthy donors like the DeVos family (whose members include Betsy DeVos, who heads the Education Department in the Trump administration).
“There’s a lot of money here and they’re not short on resources,” he said.
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