Michigan’s Republican-controlled House and Senate filed a lawsuit Wednesday against Gov. Gretchen Whitmer (D), alleging that she overstepped her authority when she extended her COVID-19 state of emergency without the legislature’s permission.
“We’ve attempted to partner with our governor, but she’s rejected. We offered cooperation, but instead she chose court,” tweeted Michigan House Speaker Lee Chatfield (R–Levering). “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.”
Whitmer became somewhat of a household name with her ambitiously strict stay-at-home directive, which included a collection of seemingly arbitrary rules. Big box retailers were prohibited from selling “nonessential” goods like paint and plants, forcing them to block off those aisles from customers. The order suspended lawn care services, prevented individuals from traveling between their own residences, and banned “all public and private gatherings.” Four sheriffs in the state publicly declined to enforce parts of it, and Whitmer eventually rolled back those restrictions.
“We extended our hand to the governor last week and offered several times to work with her to improve the state’s response and improve the status quo that is hurting so many people,” Chatfield said in a statement. “She rejected that offer and chose to go it alone, in a way that is against the law. We have to stand up for the people we represent, their concerns, and their legal rights. This lawsuit will bring everyone back to the table and ensure a better, bipartisan solution to the COVID-19 pandemic.”
Chatfield and Michigan Senate Majority Leader Mike Shirkey (R–Clarkdale) contend that they would have approved an extension on Whitmer’s state of emergency declaration had she been willing to compromise on some of the state’s lockdown measures.
“This lawsuit is just another partisan game that won’t distract the governor. Her number one priority is saving lives,” Tiffany Brown, Whitmer’s press secretary, said in a statement. “She’s making decisions based on science and data, not political or legal pressure.”
At the core of the conflict are differing interpretations of Michigan’s two laws pertaining to emergency executive authority: the Emergency Powers of Governor Act of 1945 and the Emergency Management Act of 1976. The former does not require that a sitting governor ask for permission from the legislature to extend a state of emergency, but the latter mandates that he or she do so after 28 days, a mark that Whitmer has hit. That deadline is complicated by a clause in the 1976 law, which states that it “shall not be construed to … limit, modify or abridge the authority of the governor to proclaim a state of emergency” under the 1945 act.
Predictably, legal minds are split on which interpretation will prevail. Bruce Timmons, a Republican lawyer on the Michigan House Judiciary Committee, has been widely cited in the press as saying the GOP doesn’t have a case, though it’s worth noting that, in the same interview, he said he hasn’t researched the subject and was operating off of his “gut instinct.” As Reason‘s Jacob Sullum writes, judges themselves are by no means unified on just how far lockdowns can go before serious constitutional questions come up.
Whitmer has consistently defended even her strictest measures, telling Michael Barbaro at The New York Times that she thinks the widely-criticized prohibitions in her earlier order were appropriate. “[Whitmer] has brought together leaders in health care, business, labor, and education to develop the MI Safe Start plan to re-engage our economy in a way that protects our workers and their families,” Brown said in her statement today. But some lawmakers feel that there’s a core group left out of that partnership: the legislature.