Attorneys for Gov. Gretchen Whitmer (D) and the Republican-controlled legislature will (virtually) meet in court Friday morning for oral arguments on the legislature’s lawsuit over Whitmer’s COVID-related executive orders.
Both chambers of the legislature sued Whitmer earlier this month after she issued new emergency declarations via executive order. Lawmakers had intentionally allowed her previous orders to lapse without approving an extension.
The case will be heard by Judge Cynthia Stephens in the Michigan State Court of Claims.
Here are three points to watch during this legal battle:
The Central Issue: State Laws In Conflict
At issue in the case are two conflicting state laws. Both Whitmer and the legislature are claiming that one of the laws undergirds their respective cases.
First is the Emergency Powers of the Governor Act of 1945 that grants sweeping powers to the governor, and which team Whitmer is pointing to as her hall pass in issuing consecutive emergency declarations. The legislature claims that the law was meant to apply to emergencies like riots and civil unrest, and only to limited geographic areas.
The second is the Emergency Management Act of 1976, which includes language indicating that after 28 days, the governor must get legislative approval to extend an emergency declaration. The legislature argues that she ran afoul of that mandate when she unilaterally issued another emergency declaration after the 28-day window. Whitmer says she was actually following that law, as she formally terminated her old emergency declaration before issuing a new one. Whitmer’s attorneys also argue that she’s covered even if the judge decides that her maneuvering with the new orders doesn’t satisfy the 1976 law, since the 1945 one is still on the books.
Legal experts told TPM that team Whitmer’s interpretation makes sense.
“I tend to agree with the majority that she probably has the better of the argument because that 1945 Emergency Powers Act gives her all kinds of authority here,” said Devin Schindler, a professor of constitutional law at Western Michigan University’s Cooley Law School.
He added that he doesn’t agree with the legislature that limitations about geography or type of emergency are written into the statute. “The act is broad enough to give her real authority,” he said.
Brigadier General (ret.) Michael McDaniel, an associate dean and professor of constitutional law at Cooley Law School, also found the legislature’s reading of the 1945 law weak.
He said that there is nothing written in the law that says the emergencies could not include a pandemic, or that limits the governor from issuing statewide orders, adding that actually, the law has “quite the opposite of limiting language.”
“It grants extremely broad discretion in terms of what the governor can do,” he said.
Robert Sedler, a distinguished law professor at Wayne State University, brought up another concept that may deflate the legislature’s attempt to hang its hat on the 1976 law.
“There is a general rule against implied repeal,” he said. “The enactment of subsequent law does not impliedly repeal the earlier law, unless that intent to repeal is manifest.” In other words, the 1976 law does not invalidate or supersede the 1945 law, because the legislature never repealed the first one. By leaving it on the books and not writing language into the second law to invalidate the first, they’ve left the earlier law applicable and valid.
Governing In The Time Of Pandemic
Another major factor in the case is the time in which it is being brought — the emergency to which the emergency order applies. The case for executive authority may be more acute in the context of a global catastrophe.
“What this comes down to in my mind is the court’s willingness to defer to Gov. Whitmer’s determination that an emergency continues to exist,” Schindler said. “Generally speaking, with the exception of Wisconsin yesterday, courts will defer in these kind of emergency situations to executive branch determination.”
He added that he sees it as “unlikely” that the courts will want to put handling of the emergency into the legislature’s hands, a body which is crafted to “move slowly, unlike the governor.”
McDaniel also looked forward to what would happen if Whitmer’s order is invalidated.
“So, they decide the governor should have acted differently, then what’s next?” he asked. “What’s the next thing they can do? There is no power in the legislature to execute the laws of state to confront an emergency.”
This Is Just The Beginning
Both sides know that Friday’s oral arguments are just the beginning, and that an appeal is almost certain no matter what happens.
McDaniel pointed out that either decision will leave a branch of government more hobbled than it was before.
“It seems to be that if Judge Stephens in the Court of Claims rules on the ultimate issue, there has to be limitation on either the legislature’s authority under the emergency laws or a limitation on the governor’s authority,” he said. “Either way, the parties will likely feel the need to appeal.”