Gov. Gretchen Whitmer’s (D) legal team filed a gloves-off response to the legislature’s lawsuit Tuesday, deriding it as no more than a “power grab” and attempt to foist their own responsibilities onto the judiciary.
The Republican-controlled legislature sued Whitmer last week in the Michigan state Court of Claims after she issued new executive orders extending the state’s emergency declaration amid the pandemic.
Legislative Republicans purposely allowed her previous executive order to expire, pointing to one of the state’s emergency management laws that requires legislative approval to extend the declaration past 28 days. Whitmer has cited another, conflicting state law that gives the governor broad emergency powers unfettered by time limitations or legislative input.
To cover her bases, Whitmer formally ended the original emergency declaration and issued a new one to skirt the 28-day limitation of the legislature’s favored law, the Emergency Management Act of 1976. And still, her lawyers argued, even if the court declared that action illegal, she’s covered by the other emergency statute, the Emergency Powers of the Governor Act from 1945.
“But even if this Court were to find that the Governor exceeded her authority under the EMA, that leaves her declaration under the EPGA undisturbed,” the filing said. “Because the Governor’s declarations work as a belt and suspenders, even if the belt is removed, the suspenders remain.”
The other primary point Whitmer’s lawyers made was that if the legislature has a problem with the emergency laws, they have the power to change them.
“The Legislative Plaintiffs, of course, remain free to amend these laws, even over the Governor’s objection, if they are dissatisfied with the authority they vest in the Governor or the Governor’s exercise of that authority,” the lawyers wrote. “But they have not done so. Instead, the Legislative Plaintiffs now asks this Court to referee this political disagreement and do their legislative work for them.”
Whitmer’s team asks the court to dismiss the legislature’s motion to declare her executive orders “invalid and unenforceable.”
Tensions between Whitmer and the Republican leaders of the legislature have been exceedingly high since the two sides failed to come to a compromise on extending the orders.
In one illustrative exchange, the governor’s office leaked emails from the staff of Senate Majority Leader Mike Shirkey (R) who had offered a trade: a one- or two-week extension on the emergency order in exchange for Whitmer’s public promise that she would stop issuing stay-at-home orders through executive power and let them go through the legislature instead. The governor rejected the swap, asserting that Michigan will remain in a state of emergency whether the legislature likes it or not.
That anger has bled from the government leaders into the state at large, as angry Michiganders chafing under the shutdown order swarmed the capitol bearing weapons and cheered a defiant barber who refused to close his business.
This week, Whitmer implored the Republican leaders to “denounce” violent threats she’s been receiving before a protest planned for the Lansing capitol on Thursday, and for anyone with a title or platform to help “turn down the heat.”
Attorneys for the two sides will meet (virtually) for oral arguments on Friday. But based on this latest filing from team Whitmer, any cooling off of temperatures before then seems unlikely.
“This is more than a political bluff for a dissatisfied coequal branch of government holding a losing hand under applicable law,” her lawyers railed. “It is a power grab cloaked in the fineries of unfounded legal reasoning begging for judicial imprimatur.”
Read Whitmer’s filing here:
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