Last updated on 17/11/2020
LANSING, Mich. – The lawsuit Republican lawmakers filed Wednesday over Democratic Gov. Gretchen Whitmer’s use of emergency powers during the coronavirus pandemic appears to be a loser, according to three Michigan law professors.
A fourth law professor said he finds the Legislature’s legal arguments “plausible, if not persuasive,” but said he thinks it would be extremely difficult for a judge or a panel of judges to second-guess the governor during a deadly pandemic.
The lawsuit argues that Whitmer’s emergency orders, including the stay-at-home order that runs through May 28, should be declared invalid because of lack of statutory authority. The suit argues one law Whitmer relies on applies only to local emergencies, rather than a statewide emergency, and the other one requires legislative approval – which Whitmer does not have – when it extends beyond 28 days.
Richard Primus, a professor at U-M Law School who specializes in state and federal constitutional law; Lance Gable, an associate professor at Wayne State University Law School who specializes in public health law, and Brig. Gen. Michael McDaniel, associate dean of the Lansing campus of Western Michigan University-Cooley Law School and a former state and federal security and emergency adviser, all said Whitmer is likely to prevail in the case.
All three professors said the 1945 Emergency Powers of Governor Act clearly give Whitmer the powers to continue a statewide state of emergency during the coronavirus pandemic for as long as is reasonably necessary, regardless of what the Legislature has to say. They say there is nothing in the 1945 law that explicitly limits its use to a local emergency, rather than a statewide one.
Whitmer’s use of the 1976 Emergency Management Act, without legislative approval, beyond its 28-day time limit, is a “closer call,” but still appears to conform with the letter, if not the spirit of the law, the three professors said.
Last Thursday, just as the 28-day clock was winding down, and with the Legislature refusing to grant an extension, Whitmer ended the existing states of emergency and disaster under the 1976 law and initiated new states of emergency and disaster under that law, arguably starting new 28-day clocks running, while also continuing the state of emergency under the 1945 law.
Primus said that even in the unlikely event that the courts rule against Whitmer with respect to both statutes, there is still a section of the Public Health Code – which is not being challenged in the lawsuit – that would allow the administration to continue many of the measures it has taken.
Wednesday’s lawsuit in the Michigan Court of Claims is assigned to Judge Cynthia Stephens, who was appointed to the Michigan Court of Appeals in 2008 by former Democratic Gov. Jennifer Granholm. Ultimately, the case is likely headed to the Michigan Supreme Court, which is elected on a nonpartisan ballot but where justices associated with Republicans hold a 4-3 edge.
The 1945 law says the governor “may proclaim a state of emergency and designate the area involved,” and it references actions “to bring the emergency situation within the affected area under control.” But nowhere does it say that the “affected area” could not include the entire state.
The governor’s powers under the 1945 law are sufficient to continue the stay-at-home order, the orders closing certain Michigan businesses, and a ban on certain gatherings, as well as many less significant orders, Primus, Gable and McDaniel told the Free Press.
Even if Whitmer’s continued use of the 1976 law was ruled unlawful, her orders would continue under the 1945 law, they said. Whitmer has cited both statutes in her orders.
But Phil Pucillo, a law professor at Michigan State University who specializes in constitutional law and civil procedure, said the history of the 1945 and 1976 statutes lends credibility to the Legislature’s arguments.
The reference in the 1945 law to “disaster, rioting, catastrophe, or similar public emergency within the state” suggests it is intended for local incidents, and as far as Pucillo knows, that is how the 1945 statute has been used until now, he said.
Former Republican Gov. William Milliken asked the Legislature for the 1976 law, which specifically references statewide emergencies such as a pandemic, because he did not feel the 1945 law gave him sufficient powers to address an active or pending statewide emergency or disaster, Pucillo said.
As for the 1976 law, it was clearly unlawful for Whitmer to use it to extend states of emergency or disaster beyond 28 days without legislative approval, when the statute explicitly calls for that, he said.
Still, even Pucillo is not at all convinced the Legislature can win the case.
“These restrictions are designed to keep the public safe and for a judge to declare them invalid and have them go away, and then you have a spike in COVID cases, that’s going to make the judge look awful,” Pucillo said.
“It’s going to require a degree of judicial will, in addition to thinking that the Legislature is correct on the law.”
The suit filed by the House and Senate argues that the 1945 law is intended to address “only local emergencies – not the sort of statewide concern that COVID-19 represents.”
Both Primus and Gable said that assertion is not backed up by what the law says.
“If the laws are read to mean what they say, the governor wins,” Primus said. “So they need to argue that the 1945 law should be read to mean less than it says. But I don’t see why the court should accept that the law isn’t what it purports to be, which is a pretty broad vesting of power in the governor.”
The suit argues that if it is accepted that the 1945 law has no time limit or provision for legislative review, the governor could keep Michigan in a state of emergency indefinitely.
But that is not accurate, Primus and Gable said in separate interviews.
“There obviously would have to be some limit,” Gable said.
The 1945 law says the orders must be “reasonable,” and if the governor were to continue a state of emergency beyond the existence of the pandemic, for example, a court could find that “the use of those powers is no longer reasonable.”
McDaniel said his reading of the 1976 law is that the governor must consult with the Legislature after 28 days, but that a failure to reach an agreement would not nullify her orders.
The lawsuit makes an alternative argument about the 1945 law. It says that if the statute gives as much power to the governor as Whitmer says it does, then the law itself is unconstitutional because it violates the separation of powers clause of the state constitution by unlawfully ceding too much legislative power to the executive branch.
“I think this argument is a stretch,” Gable said. “Courts have routinely upheld very broad and vague delegations of power from the Legislature to the executive. I don’t think that the Emergency Powers of Governor Act or the governor’s interpretation of it violate any constitutional limits on delegation.”
McDaniel said he would flip the Legislature’s argument on its head. What the House and Senate leaders are proposing, he said, is an unconstitutional intrusion by the legislative branch on the executive powers of the governor to manage an emergency.
Turning to Whitmer’s continued use of the 1976 law, all three professors said the case is “a closer call.”
The 1976 law says the Legislature must approve the extension of a state of emergency or state of disaster after 28 days.
Thursday’s action would appear to go against the spirit of the 1976 law, though it also appears to be technically legal to end one state of emergency and start a new one, Primus said.
The bottom line is Whitmer only requires the 1945 law, with the exception of a couple of provisions only set out in the 1976 law, such as civil liability protection for health care professionals and first responders, he said.
“One possibility is the governor is just covering her bases,” Primus said. “What’s important in her view is that the order continues, so she will cite all the authorities that might possibly support the order and leave it to the courts to figure out which ones are most applicable, rather than citing only a couple and taking her chances.”
Primus said that even if the governor were to lose on both statutes, “which strikes me as very unlikely,” the executive branch still has a third law that would allow Whitmer to continue many of the orders now in place, though likely not the stay-at-home order.
A section of the Public Health Code gives powers during an epidemic to the director of the Department of Health and Human Services that would allow for orders closing schools and certain businesses and banning certain gatherings, he said.
Gable said although the two emergency statutes give the governor broad powers to work autonomously, it will become increasingly important as the public health crisis continues for the executive and legislative branches to work cooperatively.
Doing so will allow Michigan to ramp up testing and contact tracing and eventually impose much more targeted and intermittent orders that will allow many Michiganders to return to work, Gable said.
“We have to really be working on those things,” Gable said, who added that he is speaking in general terms and not criticizing either branch of government in the current pandemic.
“That requires federal support, but it also requires the branches of the state government to be working together to make that happen.
“If everyone is fighting over who has the power to do this or that we’re not actually solving the problems.”