Power struggle between Whitmer, Republican-led Legislature goes before judge

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LANSING, Mich. (WOOD) — Attorneys for Democratic Gov. Gretchen Whitmer and the Republican-led Legislature squared off before a judge Friday, arguing about whether the governor can issue executive orders without lawmakers’ approval.

The debate is not about which businesses are essential or when the governor’s stay-at-home order should be lifted. Rather, the case is only about whether the governor can act alone in continuing states of emergency linked to the coronavirus.

“Her duty to declare an emergency if conditions require it persists. There nothing in the text (of the law) at all about the governors’ inability to continue responding if the disaster exists,” Assistant Solicitor General Chris Allen, an attorney for Whitmer, argued before Michigan Court of Claims in proceedings conducted via Zoom and streamed live online.

“This case is instead about a question of whether a governor, this governor or any governor in the future, can exercise effectively limitless, unilateral, temporally-unbounded authority,” countered attorney Michal Williams, representing the Republican leadership in the state House and Senate that is trying to curtail the governor’s authority.

Whitmer’s attorney says two laws passed by the Legislature in 1945 and 1976 not only give her the authority to act, but also demand she does so in a public health crisis.

But Republicans want a share of the power, too.

“The executive actually seized the exercise of power that would ordinarily be reserved to the Legislature itself,” Williams said.

In April, when the state of emergency for the outbreak was about to end, Whitmer asked the Legislature to extend it. They refused, so she went ahead and did it anyway.

“The governor has acted against the expressed will of the Legislature and in that way is exercising authority that does not exist,” Williams said.

The GOP says that the Emergency Power Act applies only to small, local actions not the whole state and that the Emergency Management Act has a limit of 28 days.

“She gets to do the initial quick reaction but once there’s time for the Legislature to reconvene and act, then it should, in fact, assume its constitutional role as the lawmaking authority in the state of Michigan,” Williams argued. “There needs to be reasonable limitations on the exercise of those emergency powers lest they become too broad and lest the constitutional distinctions between the executive and legislative branches be lost.”

Whitmer’s attorney argued that the power wielded by the governor is not unreasonable.

“States across the country, the Legislatures have granted their governors broad police powers to respond in crises like this,” Allen said.

The governor’s attorney argued that the law makes it clear that as long as there is an emergency, she has the power.

“That’s part of the absurdity here, you honor. There’s no doubt that a disaster, an emergency exists, yet the Legislature withheld,” Allen said.

Judge Cynthia Stephens honed in on this.

“From your perspective, the governor could declare a state of emergency for an entire term of office and there would be nothing the Legislature could do about it if they disagreed, is that correct?” she said.

“The governor can’t just declare an emergency if she feels like it. The conditions have to exist and that is undisputed here,” Allen replied, adding that the court would have to determine that there is not actually an emergency and the Legislature would have to act to change the law.

The judge was not a fan of this argument.

“That is probably the worst argument you have, I’m just real honest here. That one’s not going to go very far with me,” Stephens said.

As the judge wrapped up the hearing, she acknowledged that her ruling — expected in writing no sooner than Tuesday — almost certainly won’t be the end of the case.

“You obviously will get something in writing, which will certainly not be the last word, it will be on to my big bosses, the Supreme Court,” she said.

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