Mike Shirkey: Heed Michigan Gov. Whitmer’s COVID orders now. We’ll sue later.

May 7 update: Michigan stay-at-home order extended to May 28
May 6 update: GOP-led Legislature sues Michigan Gov. Whitmer over emergency powers

LANSING — Michigan Republicans say they’re still planning to sue Gov. Gretchen Whitmer over her emergency powers, contemplating a voter petition drive to limit her authority and preparing oversight hearings on her handling of the coronavirus pandemic.

But not this week. 

In the meantime, Michigan residents should not defy the governor’s stay-at-home order and business closure mandates, Senate Majority Leader Mike Shirkey said Monday.

“Though frustrations are high, and they’re growing, let me be clear: I am not recommending that people ignore the governor’s executive orders,” Shirkey, R-Clarklake, said in a radio interview on WCHY in Cheboygan. “I am not. I think that would put them in a tenuous situation.”

Shirkey is the first GOP leader to publicly recommend continued compliance with Whitmer’s order despite a brewing legal challenge and GOP frustrations with economic fallout from the public health crisis. 

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In a Friday statement, House Speaker Lee Chatield of Levering told Bridge Magazine he thinks Whitmer’s executive orders are “legally questionable at best” after the Legislature on Thursday rejected Whitmer’s request to extend an emergency declaration required under 1976 law.

Whitmer responded by signing a series of emergency and disaster declarations that last through May 28, citing a 1945 law she says gives her similar powers without the need for legislative approval. 

Emergency status allows Whitmer to continue issuing executive orders, including the stay-at-home mandate she revised last week to allow construction and real-estate firms to resume operations this Thursday. 

“We all wish it was more cut and dry, but that’s not the case,” Shirkey said, “and this is now going to the courts.”

Republican lawmakers argue Whitmer has refused their input on plans to begin restarting the economy as the state grapples with COVID-19, which as of Sunday had killed 4,049 in Michigan. The state has confirmed 43,754 cases since March 10.

The governor has said her administration will use science and data to determine what industries can reopen safely, where and when. She is developing a plan to reopen the economy with input from business, health and labor leaders, and accused GOP lawmakers of playing politics during a public health crisis.

“No one should be rushing the gun and playing fast and loose when starting to restart sectors of the economy that haven’t been deemed low-enough risk yet,” Whitmer said Friday. “We’ll get there, and I just ask that people be patient.” 

Attorney General Dana Nessel has told local law enforcement agencies, who are tasked with enforcing Whitmer’s stay-at-home order, to use “use their best judgment until a court resolves these issues” but said she expects people to “fully comply.” 

The Legislature last week authorized Shirkey and Chatfield to take legal action against Whitmer. But leadership did not immediately file a lawsuit, and that may not happen until next week, Shirkey said. 

The Senate GOP leader said he wants to take legal action “in parallel” with the launch of a petition drive seeking to repeal the 1945 law. Under the Michigan Constitution, the Legislature could enact citizen-initiated legislation without the governor’s signature, going around Whitmer’s veto pledge to create a new law. 

The effort would not be easy, requiring at least 340,047 valid voter signatures, a collection process that would typically take months to complete and could be even more challenging given the ongoing global pandemic and social distancing guidelines. 

“I think it’s probably the No. 1 priority right now, is to do that, based on a citizen petition initiative drive that allows true representative government and self-government to take over,” Shirkey said on the radio.

Senate Minority Leader Jim Ananich, D-Flint, shot back on Twitter: “Can’t speak for my colleague but I can speak for the @MISenDems and our number 1 priority is keeping people safe and getting people back to work in a smart and safe way,” he wrote.

Michigan Republicans say they are still planning to sue Gov. Gretchen Whitmer over her emergency power, contemplating a large-scale petition drive to limit her authority and preparing to begin oversight hearings on her handling of the coronavirus pandemic. Just not this week.

It’s not immediately clear what outside groups Shirkey plans to work with on the petition drive, which would require formation of a ballot committee and campaign finance disclosures. 

It’s also unclear if he has time to pull off the strategy this year.

The deadline for November ballot measures is May 27. But Shirkey’s plan would take advantage of a constitutional provision that allows the Legislature to approve the measure rather than sending it to the ballot. 

In late 2018, Michigan Republicans enacted a law to make petition drives more difficult. But many of those new rules, including a cap on the number of signatures that can be collected in each congressional district, have been suspended as the Michigan Supreme Court considers whether they violate the state constitution.

Sen. Tom Barrett, a Charlotte Republican who sponsored legislation to repeal the 1945 law Whitmer has cited for continuing authority, supports Shirkey’s call for a petition drive but said he would oppose any effort to collect signatures electronically, an approach a gay rights group is taking on a separate petition. 

Barrett noted the potential to mail petitions to voters and suggested circulators could utilize other protective measures to collect signatures without jeopardizing public safety. 

“The mechanics of it are more challenging, but perhaps that’s also a more pressing reason why we should pursue it,” Barrett said. “Even with a pandemic, it does not neuter the rights of the people to petition their government.”

“It’s certainly understandable that a growing number of Michiganders would be concerned about one person unilaterally making decisions for all of state government and the 10 million people who live and work and do business in our state,” Studley said. “But we would want to review the content and the form of any proposal like that very carefully first, just from a legal perspective.”

Shirkey spokesperson Amber McCann said a “citizens initiative to ensure the people's representatives are heard during crises would be a very important effort” but acknowledged it is “not an immediate solution, which is why the Legislature is being forced to ask the courts to decide.”

Shirkey and Chatfield two weeks ago created a joint oversight committee tasked with reviewing the administration’s handling of the COVID-19 pandemic. That panel, which has subpoena power, met to adopt rules last week but has not yet taken action. 

Rep. Matt Hall, a Marshall Republican who chairs the committee, said it will probably be a “couple weeks” before the oversight hearings start in earnest. 

He expects the panel will eventually review state contracting practices, including a controversial contact tracing award given to a political consultant’s firm but rescinded by Whitmer. The committee will also scrutinize the state’s handling of the crush of 1 million residents left unemployed by the crisis and data the administration is using to make its decisions. 

“We’re just doing a lot of work right now to prepare for that first meeting,” Hall said. “The idea is to work with departments, and so we'll be going to the departments when we decide which issues we're going to take up first and asking them for the information we need.”

While recent public opinion polling for Fox News suggests most Michigan residents support Whitmer’s response to the pandemic, hundreds of protesters rallied against her stay-at-home order last week at the Michigan Capitol, including some demonstrators who openly carried long guns into the historic building.

Shirkey had encouraged peaceful protests but on Friday called some of the demonstrators “jackasses,” a description he elaborated on Monday on the radio.

“There was a fine protest, but there was a handful of people — most guys — that I think were over the edge in terms of how they were attired, how they were carrying their weapons, their facial expressions, their body language,” he said, suggesting they sought to intimidate lawmakers at work in the Capitol. “I don’t think that’s appropriate."

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