Michigan Legislature Sues Gov. Whitmer, Seeking To End Coronavirus Emergency Orders

May 6, 2020
Originally published on May 6, 2020 1:17 pm

The Republican-led Michigan Legislature is suing Democratic Gov. Gretchen Whitmer, ratcheting their dispute over COVID-19 restrictions to a new level as lawmakers seek to force an end to orders that have closed down many nonessential businesses and largely confined residents to their homes.

The legislators say the governor is acting illegally and overstepping her authority; Whitmer says she is protecting citizens from a global pandemic.

The lawsuit was filed despite Michigan Attorney General Dana Nessel's recent affirmation that Whitmer is acting within the scope of the law.

"The absence of these restrictions would open gateways for the virus to reach every family and social network in every part of the State," Nessel, a Democrat, wrote in a letter of guidance this week.

Michigan has one of the worst outbreaks of COVID-19 in the U.S., recording 4,183 deaths and nearly 45,000 cases overall, according to data compiled by Johns Hopkins University.

On Tuesday, Whitmer's state was praised for taking action to avoid an even worse outcome.

"A few weeks ago, it looked like it might turn into another New York," the COVID Tracking Project said on Tuesday. "Deaths were rising rapidly, peaking at over 200 per day. Now, deaths are *slowly* declining. Testing is way up, but newly discovered cases are falling."

The governor recently eased restrictions on industries such as construction and landscaping — and as member station Michigan Public Radio reports, Whitmer said this week that the state must carefully study the situation before allowing more businesses to resume operations.

The lawsuit is the latest sign of a fractured political scene in Michigan, where hundreds of protesters — some of them armed — descended on Michigan's Capitol building last Thursday to push back on Whitmer's orders.

That same day, lawmakers passed a resolution to give them standing to take the governor to court over her coronavirus response. But that night, Whitmer issued new executive orders to extend a state of emergency through May 28.

Whitmer also responded to the Legislature's effort to sue her, stating, "Right now is not the time for politics. Right now is the time to do the next right thing" — referring to following stay-at-home restrictions.

Nessel said members of the public and the law enforcement community have been confused by the political debate over the governor's ability to act without the Legislature's endorsement.

"I am writing to clarify that, regardless of what you may have heard, [the two executive orders] are valid and enforceable," Nessel wrote.

Michigan Republicans disagree.

"This was avoidable, but today we filed a lawsuit in our state to challenge her unconstitutional actions. The law in Michigan is clear, and nobody is above it," House Speaker Lee Chatfield said via Twitter.

Senate Majority Leader Mike Shirkey joined in, saying the governor is using a health crisis as an excuse to break the law.

The lawmakers contend that Michigan's Emergency Powers of the Governor Act, which dates to 1945, was meant to be applied at the local level, not for the entire state. And they say that because another law, the Emergency Management Act of 1976, says an emergency declaration should only last for 28 days without the Legislature's approval, a judge should quash Whitmer's orders.

But Nessel says that both of Whitmer's actions — Executive Order 2020-69 and Executive Order 2020-70 — "bear a real and substantial relationship to securing the public health, and they are reasonable." And she adds that while the governor has relaxed some of the restrictions, they are still valid under the Emergency Powers of the Governor Act.

Because of that, she concludes, "speculation" about the orders' validity under the 1976 EMA law "is of no moment and should not create any confusion as to the enforceability of these orders."

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