Democratic Michigan Governor Gretchen Whitmer was sued by the Michigan House and Senate for overstepping her authority to declare new states of emergencies and disasters without getting their consent which Michigan statute requires. 

The legislature is contending that all of her emergency orders are invalid because they come from invalid emergency declarations. 

All of the governor’s executive orders concerning COVID-19 (of which there are 80) stem from the governor’s ability to declare a state of emergency and/or disaster. There are two laws in play here that Whitmer cited to be able to control the citizens of Michigan with her tyrannical orders. 

When Whitmer declared the first emergency declaration regarding COVID-19, she cited both laws in her order. 

The first emergency declaration law is from 1945 and is Act 302 of 1945 and is called the Emergency Powers of Government Act (EPGA). It gives the governor broad power of action in the exercise of the police powers of the state under a state of emergency. These powers are only effective during a declared state of emergency. 

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The second law is from 1976, Public Act 390 and is called the Emergency Management Act (EMA) and allows a governor to declare a state of emergency or disaster, a disaster being an “occurrence or threat of widespread or severe damage, injury or loss of life to property resulting from a natural or human-made cause” and actually names epidemics as such a disaster. This law makes it mandatory for the governor to get approval from the House and Senate every 28 days to keep her emergency powers in place. 

The first time she asked for a 28 extension, it was granted by the legislature but she knew her second request wasn’t going to fly so she gamed the system. She split up her declarations into two separate orders, citing the two statues separately instead of combining them together. This way, she hoped that one of them might make it through a court system. 

On Friday, Judge Cynthia Stephens listened to Michael Williams, the attorney for the plaintiff (House and Senate) and the governor’s attorney, Christopher Allen, assistant solicitor general for the state. 

Judge Stephens was appointed by Democratic Governor Jennifer Granholm but what I saw during the hearing seemed pretty fair with her asking reasonable questions. 

In the beginning of the hearing when they discussed standing, the state argued that there was no injury to the House and Senate because they are still capable of passing laws to try to stop the governor’s authority, therefore there is no institutional injury. The attorney for the legislature said that the state seized the power from the legislature by ignoring the 28 day statute. 

Williams said that Whitmer’s extension of an emergency order without legislative approval grants her “limitless, unilateral, temporally unbounded authority…for as long as the governor wishes.” And the judge had quite a long exchange with Whitmer’s attorney questioning him about that. 

Here is that exchange in which the judge and Allen discussed the emergency declaration being valid under the EMA: 

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JUDGE STEPHENS: Your perspective would be so long as the governor declares there to be an emergency, the governor is free every 28 days to terminate one emergency and declare an identical emergency to have begun the next day and that that’s entirely valid under the EMA? 

ALLEN: Correct, your honor. I agree it is by the plain statutory language. 

JUDGE STEPHENS: Under the plain statutory language, from your perspective, the governor could declare a state of emergency for an entire term of office and there would be nothing that the legislature could do about it if they disagreed. Is that correct? 

ALLEN: Not necessarily your honor, because the conditions… 

JUDGE STEPHENS: Then what could they do? 

ALLEN: First of all, the governor can’t just declare an emergency if she feels like it. The conditions have to exist and that is undisputed so unless the plaintiff’s want to argue that “shall” doesn’t mean shall then she is obligated to issue a declaration, an executive order… 

JUDGE STEPHENS: Okay, that is not what I asked you… Your perspective is, so long as she perceives, validly or invalidly, that there is an emergent condition, she can terminate one order and start another for as long as she deems appropriate and the legislature would have no role under the EMA to do anything about it. Yes or no. 

ALLEN: No… 

JUDGE STEPHENS: No, they can’t do anything about it? That’s what you’re saying? 

ALLEN: No, what I’m saying is…Validly or invalidly is I think the crux of the matter. She can’t just say that there is an emergency if there isn’t and her declaration… 

JUDGE STEPHENS: Why not? Who can do anything about it? 

ALLEN: We’ve acknowledged this in our brief that a plaintiff could challenge the governor’s declaration if it’s not supported by facts. Now of course there’s substantial deference given to her judgement but that’s a judicially reviewable decision, that’s not our case here… 

JUDGE STEPHENS: 

So your contention is the governor can act and it’s up to an individual and private citizen then to seek to terminate? There is no institutional role. Is that correct? 

ALLEN: The institutional role I think that moves into a problem with the legislation with the EMA if the legislature is right about their position. Because I think that implicates, it sort of moves into a different argument. I don’t mean to pivot but I think this is part and parcel of the same question…If the legislature is right that the governor has this authority but that they can revoke it from her after 28 days with a mere resolution, that creates its own constitutional problems under the legislative veto doctrine. 

JUDGE STEPHENS: Okay, so…that is probably the worse argument that you have. Just real honestly, that one is not going to go very far with me. The legislature acting is not a veto. The legislature has the privilege and the obligation to act. The two entities don’t agree with each other. I got that. 

But my concern is that, if I understand you correctly, so long as a governor perceives there to be an emergent condition, albeit it one that has lasted much longer than 28 days, that governor has the ability to declare a new state of emergency or a continuing state of emergency and that the only….there is no role for the legislature in seeking the termination of that authority…that that role is left to the private citizenry…that’s what I understand you to say. Why doesn’t matter. But it would have to be to the private citizenry. 

Because first you said they (House and Senate) had no standing to begin with. So if you said they had no standing to begin with, certainly they’re not gonna get more standing. But you believe that this is a private citizenry issue. Is that correct? 

ALLEN: I don’t believe that it’s a private citizen issue. The characterization that the governor can completely decide whether there’s an emergency or not… that’s not our position. The emergency and disaster are defined by the statute… 

JUDGE STEPHENS: But…if the legislature doesn’t agree, they act one sort of way… You said they didn’t have the authority to do that. Okay…the only person, the only entity then who can come in and say to the governor ‘we know you’ve got good faith but we think you’re wrong. This is not, in fact, an emergent condition or it is not a crisis condition’ would have to be a private citizen, wouldn’t it? 

ALLEN: I think it…that would…that would be the case, your honor. 

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The state’s position is that because the legislation in the EMA didn’t prohibit a governor from cancelling and re-instating the same emergency declaration, they are allowed to do so. They say she has a duty to declare an emergency. 

The judge asked a good question to Williams about this by asking that if the emergency declarations go away, what if a new COVID-19 emergency takes place in the fall such as a mutation of the disease or many more cases, can a new emergency be declared or not? 

Williams said the judiciary would have to look at the conditions which are stated in the legislation – the nature of the disaster, the area, the conditions, etc. and whether there has been a change. 

These are all things that weren’t considered to have changed during the one minute where Whitmer cancelled the emergency declaration and then re-instated it. 

I don’t believe Whitmer is is going to win her argument that what she is doing is valid under the EMA. It’s pretty clear that the judge doesn’t think so either. The legislation clearly says a governor has to get approval from the legislature every 28 days. The legislature never would have put that in there if their intent was to allow a governor to terminate and re-start the same emergency declaration whenever they wanted. 

Which leads us to the state’s argument that a governor can declare an emergency indefinitely under the older EPGA legislation and use it as grounds for the validity of the governor’s executive orders. 

Williams said that the two laws were meant to act in separate ways and that the older legislation is for localized emergencies – things that are shorter, more localized and demand quick action. There are many phrases in the legislation that tend to support his assessment – phrases like “public emergency within the state” and “designate the area involved.” 

In contrast, the EMA actually refers to a disaster as being “widespread” and specifically names “epidemic” as one such disaster as stated before in this article. 

Williams pointed out that the EPGA wasn’t cited in emergency declarations in the past 43 years by the other governors and he argued that the EPGA shouldn’t have been triggered because it was not valid in the COVID-19 situation. 

Phillips said how previous governors interpreted the EPGA doesn’t matter because it has to do with what the legislature intended. He contends that the language isn’t about only local events. He said the newer law is a supplement to the older one, with the newer one not being able to abridge or modify the governor’s powers in the older legislation. 

Williams explained Whitmer’s emergency declaration request under the EPGA with a very good illustration of a neighbor’s house being on fire and Whitmer grabbed a hose to help because it’s an emergency (EPGA) but then doesn’t allow the professional fire department to take over once they get there and put out the fire (EMA) because she wants to continue to do it herself. 

The transcript of this case will be released on Tuesday with most people thinking that a decision will come by the end of the week. 

Meanwhile, Michigan is still under a stay-at-home order through May 28th even though almost 70% of the cases and and 79% of the deaths are still occurring in three counties in southeastern Michigan.