Michigan Gov. Gretchen Whitmer speaks with reporters, Tuesday, Feb. 4, 2020, at her office in Lansing, Mich., about delivering the Democratic response tonight to President Donald Trump’s State of the Union address. She says she will focus on “dinner-table issues” such as infrastructure, jobs and health care. (AP Photo/David Eggert)
Michigan is facing a constitutional crisis as Democrat Governor Gretchen Whitmer circumvents the Republican-controlled Legislature at the height of the state’s response to the coronavirus pandemic.
Whitmer has been a familiar face on the Sunday shows — first delivering the response to the State of the Union and then auditioning to be the running mate of Joe Biden, her party’s presumptive presidential nominee.
The first-term governor has issued dozens of decrees, including executive orders that suspended open-records and open-meetings laws, on top of a stay-at-home order under wartime-era laws that give certain “limited and temporary” powers to a governor during a declared emergency. However, the suspension of duly enacted statutes itself is presumably unconstitutional as the Michigan Constitution vests exclusive lawmaking authority with the legislative branch.
Under the Emergency Management Act, which was enacted during the Cold War in 1976 to complement an earlier statute from the Second World War, the governor needs legislative approval to use her emergency powers beyond 28 days.
Whitmer wants to extend these powers for 70 days beyond April 13, the expiration of the stay-at-home order.
Republican majorities in the Senate and House of Representatives disagree. They are expected to pass a concurrent resolution extending the emergency powers through May 1 when both houses resume sitting Tuesday. Such an extension would be in keeping with the current recommendations from the White House Coronavirus Task Force.
“I am willing to extend the governor’s emergency declaration, but giving her blanket authority to run the state until mid-June with no oversight or accountability is not something I can support at this time,” Representative Matt Hall, chairman of the House Oversight Committee, said in a written statement. “A 70-day extension is too long in a situation that has been unpredictable since day one.”
The vote is expected to be an unrecorded voice vote over several hours due to precautions aimed at limiting legislators to possible coronavirus exposure, the Detroit Free Press reported. Additionally, a memorandum from Speaker of the House Lee Chatfield strongly discouraged representatives from attempting to introduce other legislation.
The GOP response has infuriated Whitmer, who doesn’t even want the Legislature to resume sitting. Her office is also arguing the Legislature can only take a straight up-or-down vote on approving or disapproving an extension of emergency powers.
“They should come in, extend the 70 days and return to their communities like the rest of us are doing to keep the public safe,” a Whitmer spokesman told MLive.
In other words, the governor wants legislators to refrain from exercising scrutiny over her actions and serving as a check-and-balance on the executive branch. These duties and responsibilities are a fundamental component to Michigan’s tripartite system of government. Simply put, just as Whitmer has a job to do so do senators and representatives.
As of now, it is unclear how the governor will respond if legislators, as expected, reject her power grab. Democrat allies argue the 28-day time period was reset when Whitmer recently updated her original declaration.
Meanwhile, sympathetic voices in the state’s ever-shrinking press corps are pushing the idea of virtual legislative sessions, which is ironic because remote lawmaking would hinder transparency, accountability and accessibility — virtues traditionally championed by newspapers. Virtual sessions would also likely run afoul of state constitutional requirements for the Legislature to meet in the capital of Lansing with doors to the Capitol and each chamber kept open for public access.
Michigan’s looming constitutional crisis isn’t an esoteric debate.
Rather, it is an important moment for constitutionalism and small ‘r’ republicanism — a moment when legislators, regardless of party, owe it to the people they serve to prevent the governor grabbing power and using questionable prerogatives to infringe upon the co-equal legislative branch.
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