In Michigan, a governor is able to use executive orders to create rules that citizens have to follow after declaring a state of emergency or disaster according to two old laws of the state and the Michigan constitution. 

Michigan Democratic Governor, Gretchen Whitmer, declared a state of emergency due to COVID-19 back on March 10th. From there, she shut down businesses, closed schools, made rules about how many people could gather together and generally gave us a list of what we can and can’t do and where we can and can’t go. 

A lot of Whitmer’s ridiculous orders caught the attention of the national media including not allowing people to use motors on their boat, closing down certain sections of stores, not allowing greenhouses to open, not allowing construction to proceed and not allowing Michiganders to go to their vacation homes. 

In order to declare her COVID-19 emergency, Whitmer cited two old laws in her order. The first law she cited is Act 302 of 1945 which authorizes a governor to proclaim a state of emergency during times of great public crisis, disaster, rioting, catastrophe or similar public emergency within the state. 

The law allows a governor to control traffic, regulate occupancy of buildings, set curfews, and lists many other things but also says the governor is “not limited to” these things – which is an open phrase to one-person rule. The law also says that it’s declared to be the legislative intent to “invest the governor with sufficiently broad power of action” over the police power of the state to provide control over persons and conditions. Carte blanche powers. 

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The 1945 law has no expiration date or any outlined legislative way to end the declaration. It says the governor can amend, modify or rescind the rules during the emergency and that the emergency will be in effect until the governor declares that it no longer exists. 

The other law that Whitmer cited in order to declare an emergency is Act 390 of 1976. This law was written to provide for planning, mitigation, response and recovery from disasters as well as create a Michigan emergency management advisory council, prescribe powers and duties of state and local agencies and other things. 

It explains that the governor is responsible for coping with dangers to the state or the people of the state who are presented by a disaster or emergency and lets her issue executive orders, proclamations and directives to implement this act. 

The act allows the governor to declare a state of disaster or emergency and states that it continues until the governor finds the danger has passed, the danger has been dealt with or until the declared disaster has been in effect for 28 days. 

And here’s the most important part of this law. After 28 days, the governor has to terminate the emergency declaration or ask for an extension from the legislature for a specific number of days. 

Governor Whitmer asked for an extension of her first emergency declaration on April 7th and the Michigan House and Senate approved her extension for 23 days until April 30th. 

After that, her orders got more ridiculous and oppressive and her relationship with the legislature broke down. 

Because Whitmer has ruled so tyrannically, the people of Michigan got fed up and protested against her at the Capitol. They were protesting against the loss of their jobs and businesses, not being able to go to the hospital for medical procedures, not being able to go to church and not being able to assemble together if they weren’t in the same household among other things. 

Even though the stay-at-home orders were implemented to “flatten the curve” and that has happened, Whitmer still continues to extend the orders whenever she has the chance. 

I’ve been keeping track of how COVID-19 has been affecting Michigan for almost two months and this much is known. The hospitalizations since April 10th have almost been cut in half, falling every day. The governor is ruling over the entire state based on what’s going on in lower southern Michigan. 

81.9% of the cases and 87.76% of the deaths in Michigan are coming from southern Michigan in the counties of Genesee, Kent, Macomb, Oakland, Wayne and also from the Michigan Department of Corrections. 

Not only is the governor penalizing the rest of the state for what’s going on in southern lower Michigan, she’s also shipping COVID-19 patients all over the state to nursing homes called “designated regional hubs.” She currently has moved 194 nursing home residents into counties with low case numbers and death rates like in the case of Grand Traverse County where they’ve only had 19 confirmed cases and five deaths but now have six COVID-19 nursing home residents in their local MediLodge nursing home. 

Whitmer, who is also Joe Biden’s campaign co-chair, has been trying to increase her visibility by doing press conferences and interviews with the liberal media. She is working on the public relations aspects of her governorship and is trying to increase her chances of being Biden’s pick for VP. Meanwhile, she is angering more and more of the citizens in her state and refuses to work with the legislature on the pandemic. 

So the latest news is that Whitmer requested a second extension from the legislature on May 1st to continue her emergency declarations, this time 28 days. The legislators wanted to negotiate with her and wrote a bill that kept some of her COVID-19 executive orders but not all of them and were offering her an extension of less time. 

Whitmer was not having any of it. Not wanting her power to be thwarted, she released internal emails between herself and Republican Senate Majority Leader Mike Shirkey who proposed extending her emergency powers for two weeks in exchange for her to work with them on future orders. 

Regardless of the 1976 law that requires her to get legislative approval to continue her emergency declaration, she said, “Michigan remains in a state of emergency regardless of the actions you (legislators) decide to take or not take.” She warned, “I’m not going to engage in political negotiations with anybody.” Whitmer thinks that the 1945 law gives her unlimited power for an unlimited time. 

So that leads us to today…which appears to be a constitutional crisis because the legislature did not vote to renew Whitmer’s emergency declaration extension but she still thinks it’s valid along with all of the executive powers she has written. The GOP is planning to take her to court

Republican Senate Majority Leader Mike Shirkey said, “We can no longer allow one person to make decisions for ten million people.” 

Here is why I think Whitmer will lose her battle to continue her emergency orders and remain dictator of the state of Michigan. 

  1. Whitmer asked for extensions to her emergency orders twice. This shows an understanding that she is required to do so under the 1976 law. If she didn’t believe it was necessary, she wouldn’t have requested the extensions. It’s only when the extension was denied that she said it has no significance to her powers. 
  2. The 1976 law is newer, longer, and is more restrictive than the 1945 law concerning the governor’s limitations of powers. The 1945 law was never repealed so the 1976 is an “add on” with new information and clarification. 

It doesn’t seem likely that Whitmer would be able to go to court and ask that she be given powers under just the 1945 law itself when the laws are to be taken into consideration concurrently, which she established herself by including both laws together in her original state of emergency declaration. 

The 1976 law even cites the 1945 law and says that the new law can’t “limit, modify or abridge the authority of the governor to proclaim a state of emergency.” But that’s all it says about it. The 1945 law says a governor can proclaim a state of emergency but the law doesn’t stand alone if new statutes come along pertaining to the same issue. 

  1. In her previous emergency declarations on the State of Michigan website, Whitmer never cited the 1945 law in her other orders. She only did that for the COVID-19 order. The other declarations of emergency only reference the 1976 law in executive orders 2019-01, 04, 11, 12 and 17. She has no precedence of using the 1945 law as means of declaring a state of emergency before the COVID-19 pandemic order and it would be interesting to find out if any other governors ever cited the 1945 law either before 1976. 
  2. The 1945 law talks about timing and how long the emergency can last. It says that the emergency lasts until the governor says it no longer exists. With Executive Order 2020-66 which was signed before midnight on May 1st, Whitmer terminated both the state of emergency and the state of disaster and in this order, she complained that the legislature had refused to extend her states of emergency and disaster. 

But she’s playing games. She immediately declared new states of emergency and disaster in two new separate orders. She did this instead of declaring one order as she did in the past because she knew the issue would be going to court. 

Executive Order 2020-67 declares a state of emergency under the older 1945 law. But the odd thing is that she doesn’t even call it a new order. It says, “a state of emergency remains declared…” How can it remain declared if she terminated it with Executive Order 2020-66? And what new information is she going to give to the court to explain how, in the course of about three minutes, between the termination and the new order, all of a sudden something happened that required a new state of emergency? 

Then she also signed Executive Order 2020-68 in which she declares a state of emergency and disaster under the 1976 law. This is obviously not valid because she did not get legislative approval to extend her previous state of emergency. All she did was re-do the same emergency order, but she separated it from the 1945 order for litigation purposes. 

  1. I expect the lawsuit against Whitmer to end up in the The Michigan Supreme Court and they are 4/3 Republican. Republicans, more than democrats, respect the constitution and the rule of the law instead of imposing their ideology on others and voting to get a certain outcomes. 

I have faith that the Michigan Supreme Court will look at the current situation and how the laws were written and should be interpreted. I have faith that they will use reason, thoughtful deliberation and also take into consideration Whitmer’s attempts to game the system so she can avoid the checks and balances written into Michigan law. 

I think the governor knows she is not going to win her court case and is just buying herself some time because it’s entirely possible that the case might not go to court or get decided before May 28th.