Lansing — The top Republicans in the Michigan Legislature unveiled a lawsuit Wednesday, challenging Gov. Gretchen Whitmer’s emergency powers to combat COVID-19.
House Speaker Lee Chatfield, R-Levering, and Senate Majority Leader Mike Shirkey, R-Clarklake, announced the suit in the state Court of Claims during a press conference inside the Michigan Capitol.
“We’ve attempted to partner with our governor, but she’s rejected,” Chatfield wrote on Twitter Wednesday. “We offered cooperation, but instead she chose court. This was avoidable, but today we filed a lawsuit in our state to challenge her unconstitutional actions. The law in Michigan is clear, and nobody is above it.
The announcement Wednesday came six days after the Michigan Legislature approved resolutions authorizing Chatfield and Shirkey to take legal action against Whitmer’s unilateral powers on behalf of the GOP-controlled House and Senate.
The debate continues to focus on how long the Democratic governor can keep her state of emergency declaration in place without getting approval from GOP lawmakers who want a say in reopening the state’s economy.
The emergency declaration is what allows Whitmer to take unilateral actions to fight the novel coronavirus, like issuing her stay-at-home order that requires most Michigan residents to stay inside their residences. That order is currently in place until May 15.
Republicans want to see the order and other restrictions on businesses lifted more quickly to help salvage the state’s economy. Whitmer and Democrats say they’re going to rely on science, data and health experts to make decisions about when to reopen the economy.
She previously asked lawmakers to extend her emergency declaration, which expired at the end of Thursday, by 28 days. Republican lawmakers refused to do so last week.
They argue without their approval, the declaration ended. They point to the 1976 Emergency Management Act, which gives the governor emergency powers but also requires the Legislature’s approval for further measures after an emergency declaration has been in effect for 28 days.
Democrats emphasize a 1945 law that allows the governor to declare a state of emergency and have emergency powers but doesn’t include the 28-day deadline. The 1945 law suggests a governor can declare when an emergency no longer exists.
Last week, Whitmer extended the state of emergency here until May 28 under both laws, attempting to start a new 28-day window under the 1976 law.
But Sen. Tom Barrett, R-Charlotte, said previously the new declaration was like using a wish to ask a genie for more wishes.
But Whitmer has repeatedly said the emergency powers she has “do not depend on an extension from the Legislature.”
Legal experts said last week, that the fight between the Legislature and Whitmer could end up before the Michigan Supreme Court, the state’s highest court. They also said there were no past rulings in the state that spoke directly to the matter.
The Michigan Supreme Court has four Republican nominated justices and three Democratic-nominated justices. However, the current court often doesn’t rule along party lines.
Bob LaBrant, a longtime attorney who previously served as counsel to the Michigan Chamber of Commerce, said he thought Whitmer would win the case because of the 1945 law.
“I think the governor will prevail,” LaBrant said.
But Eric Doster, another longtime attorney and former counsel to the Michigan Republican Party, highlighted the separation of powers argument touted by GOP lawmakers.
Doster said under his reading of the two laws, the 1945 act, unlike the 1976 act, doesn’t allow the governor to issue orders that unilaterally amend state law.
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