As promised, the Republican-controlled state legislature in Michigan sued Gov. Gretchen Whitmer (D) Wednesday morning, arguing that she exceeded her authority by extending the state’s stay-at-home order last week.
Senate Majority Leader Mike Shirkey (R) previewed such a lawsuit Thursday, when, after the legislature allowed her order to lapse, Whitmer issued a trio of new executive orders extending it anyway.
“The Legislature did not approve an extension of the state emergency declaration and as such we expected the declaration to end,” he said in a statement accompanying the suit. “Instead, we saw the governor ignore the law, unilaterally extend the emergency, and write new executive orders. If left unchecked, the governor could extend her authority indefinitely.”
Whitmer’s Press Secretary Tiffany Brown told TPM in a statement that the “lawsuit is just another partisan game that won’t distract the governor.”
“Moving forward, the governor will continue to listen to medical experts and put the health and safety of Michiganders first,” Brown said.
The chambers of the legislature are seeking, in the Michigan court of claims, an immediate judgement rendering the stay-at-home orders “invalid and unenforceable.” They also want oral arguments to be held on the issue.
The governor insists that she does not need legislative approval to extend her order; the legislature says she does. The two sides cite conflicting state laws.
Whitmer has been hanging her hat on the “Emergency Powers of Governor” enacted in 1945, which gives the governor broad emergency powers and few constraints.
The legislature, on the other hand, has been pointing to the “Emergency Management Act” of 1976, which grants the governor emergency powers only for 28 days before requiring a legislative extension.
In an attempt to cover her bases, Whitmer formally ended the previous emergency with her new orders, and issued new stay-at-home orders under both the 1945 and 1976 laws.
Any hope of the matter being decided without legal action was scuttled last week, as temperatures rose on both sides.
Whitmer’s office leaked emails with Shirkey’s chief of staff, revealing that the Republican had tried to barter one- or two-week extensions on the order in exchange for Whitmer’s promise that she’d go through the legislature with future stay-at-home orders.
Whitmer shut down the compromise, saying that “Michigan remains in a state of emergency regardless of the actions you decide to take or not take.”
Shirkey retorted that any desire within the Republican caucus to work with the governor had “evaporated.”
Whitmer later accused Republicans of playing politics during the health crisis.
The week of tension was punctuated with armed protesters entering the capitol building Friday and yelling at lawmakers while they debated the issue.
In addition to the legislature’s new filing in state court, an individual Republican congressman is also challenging Whitmer on the federal level. Rep. Paul Mitchell (R) filed in U.S. district court Monday seeking relief from the governor’s emergency orders.
In his complaint, he observed that coronavirus cases in the state are flattening, yet the governor continues to enforce strict social distancing mitigation. He called her executive orders “unconstitutional.”
“In short, Mitchell brings this lawsuit to define the limits of a State’s police power,” the complaint said.
Whitmer has argued that ongoing social distancing is necessary to further flatten the curve and prevent a second spike. As of Wednesday, the state had 44,397 confirmed cases and 4,179 deaths, per the state health department.
“Let me be clear: I will not be making decisions based on an arbitrary timeline or political pressure,” Whitmer wrote in a tweet when she extended the stay-at-home orders. “I’m not here to play games. My number one priority is the health & safety of Michiganders, and I will continue to work tirelessly to protect both lives & livelihoods.”
Read the legislature’s complaint here:
This post has been updated.