A lawyer for Republican leaders in Michigan's state House and Senate argued Friday that to allow Gov. Gretchen Whitmer's extension of an emergency order to stand over the legislature's objections essentially grants her "limitless, unilateral, temporally unbounded authority ... for as long as the governor wishes."
Taken to its extreme, lawyer Michael Williams said, "We would be talking about the exercise of executive power with no legislative input for a period of years."
Williams' claim came in a hearing held via teleconference by Court of Claims Judge Cynthia Stephens into the Republican-led legislature's lawsuit challenging Whitmer's decision on April 30 to enact a new order in response to the coronavirus threat moments after an earlier one expired and the legislature refused to extend it.
Lawyers for the Republican leaders are asking Stephens to declare Whitmer's order invalid, saying she did not follow the laws as enacted by the legislature.
Under the emergency order, an earlier version of which was initially extended by the legislature and then allowed to lapse, Whitmer has had authority to issue dozens of executive orders responding to coronavirus. Those have included a sweeping stay-at-home order closing businesses and limiting movement outside people's residences which have been met with protests at the state Capitol, including on Thursday.
More: Rain, lack of lawmakers dampen anti-Whitmer rally at Capitol
Christopher Allen, an assistant solicitor general who represented Whitmer at the hearing, said under the law the governor had a duty to issue another emergency order after the legislature allowed the earlier one to lapse since the threat posed by the virus — which as of Thursday had killed 4,787 people in Michigan since March — remained.
Under the law as passed by previous legislatures, he said, "Her duty to declare an emergency if conditions persist requires it."
Stephens didn't rule on the request but suggested she could as early as next week. With Whitmer's stay-at-home order and emergency declaration set to last through May 28, Stephens said she expected any decision she renders to be appealed to the state Supreme Court.
Republicans questioning Whitmer's authority in the lawsuit
Williams said that Republican leaders who control the House and Senate were not, as part of the lawsuit anyway, questioning the wisdom or folly of Whitmer's orders.
But he said that it made no sense that the legislature would have, in passing the Emergency Management Act of 1976, set a 28-day time limit on a state of emergency without additional legislative approval if a governor could simply re-issue the order moments later without a new emergency having taken place.
More: Why Gov. Whitmer is likely to win the GOP lawsuit over her emergency powers
"The problem is when this degree of power is imposed statewide for an indefinite period of time… and there only be a gubernatorial determination that it is necessary, that is not enough," he said.
Williams also reiterated the argument, made in briefs to the court, that an earlier act giving broader authority to the governor, the Emergency Powers of Governor Act of 1945, which does not include a time limit, was intended only to be used in local emergency, not statewide.
Allen countered Williams' argument, saying there was nothing in the 1945 act that specifically limited the governor's powers to declare an order statewide and that the 1976 act specifically said it was not intended to limit the governor's powers. Several legal experts have told the Free Press that Whitmer's orders appeared to have a solid grounding as well.
Allen said the legislature retains its right to pass a law limiting the governor's authority to respond to emergencies if it wishes to do so, though Whitmer has promised to veto any such bills, saying she and future governors need latitude to act.
Across the U.S. and in Washington, legislative bodies have through the years granted authority to governors and presidents to take unilateral actions in response to emergencies, provisions which Allen said were wise.
"In a circumstance in which a nimble response is necessary, the legislature presumably didn’t want to have any holes in that authority," he said.
Stephens pointedly asked him, however, if the legislature really has any role in determining the propriety of an emergency order if the governor can issue one over its objection. Allen said no, not under current law, if the conditions of an emergency are found to exist, though he said it could be reviewed by a court.
But he said while Whitmer has a duty to declare an emergency if conditions warrant, she can't do so without any kind of proof of one.
"Future emergencies are unknown and unknowable," he said. "(But) The governor doesn't have a blank check here."
Contact Todd Spangler at tspangler@freepress.com. Follow him on Twitter @tsspangler. Read more on Michigan politics and sign up for our elections newsletter.
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