Judge to hear oral arguments in GOP lawsuit against Gov. Whitmer's emergency powers

LANSING, Mich. - The legal showdown between the Michigan governor and the state legislature will formally begin Friday.

A Michigan Court of Claims judge is set to listen to oral arguments from attorneys representing both Gretchen Whitmer and members of the House of Representatives and Senate on the basis of her emergency powers. 

Republican lawmakers believe Whitmer has overstepped her constitutional authority in her decisions to continually order declarations of emergency during the COVID-19 pandemic, the underlying provision she has used to issue emergency orders. Whitmer denies those charges, claiming her decision to overrule calls to end the declaration and repeal her executive orders is grounded in her mission to save lives.

The GOP formally announced its lawsuit on May 6. In a legal filing submitted by attorneys arguing on behalf of the plaintiffs, they claim the governor has regulated "every aspect of nearly 10 million lives" without input from those individuals or their representatives. 

"No statute or constitutional provision empowers the Governor to declare a statewide, indefinite state of emergency and then rely on the declaration to exercise unfettered lawmaking authority."

The mounting political turmoil between the governor and her GOP counterparts bubbled to the surface the same day Whitmer extended her emergency declaration until May 28. Arguing that she needs approval from the legislature in order to extend her emergency declaration, Senate Majority Leader Mike Shirkey (R-Clarklake) and House Speaker Lee Chatfield (R-Levering) believe her new order is invalid. 

“The Legislature did not approve an extension of the state emergency declaration and as such we expected the declaration to end. Instead, we saw the governor ignore the law, unilaterally extend the emergency, and write new executive orders," said Shirkey in a press release. 

Republicans have often cited a 1976 law that claims governors can only assert an emergency declaration for 28 days. However, Whitmer has rebuked that argument by invoking another emergency powers act that was approved in 1945, which claims governors can declare emergencies for as long as necessary.

Michigan is currently under its third emergency declaration since the arrival of the coronavirus in the state, which was first confirmed on March 10. 

The governor minced no words in the formal document submitted to the court that argues on behalf of Whitmer's stance. 

"The Legislative Plaintiffs come to this Court seeking only to build a constitutional crisis atop a public health crisis in Michigan."

The governor's defense claims the legislature is asking the court to "referee" the disagreement between the two parties.

While most of the executive orders declared by Whitmer have been met with little resistance, the one that continues to be a sticking point is her Stay Safe, Stay Home initiative. Under the order, Whitmer has closed businesses, restricted travel, and mandated residents abide by social distancing guidelines pushed by the federal government, all steps she argues would slow the spread of the pandemic. The order has been extended multiple times, including as recently as until May 28. 

Critics of the decision argue the state's economy has been unnecessarily damaged in the wake of the public health crisis. While Michigan at one point counted the third-highest number of COVID-19 cases in the country, most confirmed cases originated out of Metro Detroit. Republican lawmakers, many of whom represent more rural and less populated parts of the state don't think a blanket ban on all businesses will provide enough benefit to remain in place.

Whitmer has pushed back on that argument, claiming a lack of hospital capacity would leave the region decimated.

The GOP had proposed bills that would alter the laws that Whitmer has used as grounds for issuing her executive orders, but the governor has vetoed them in response. Shirkey has also proposed a citizen-led petition that would allow lawmakers to pass a bill without the governor's approval. But a path like that would likely take months.

Judge Cynthia Diane Stephens will listen to the arguments over Zoom, beginning at 10 a.m. The video will be livestreamed from the court's YouTube page here.