Some in masks, Michigan lawmakers extend Whitmer authority amid coronavirus

LANSING — State lawmakers answered screening questions, had their temperature checked and some wore masks in the Michigan Capitol on Tuesday as they extended Democratic Gov. Gretchen Whitmer’s emergency authority to battle the coronavirus through April 30. 

Republican leaders implemented the unusual safety precautions in the midst of a global pandemic that has killed 727 Michigan residents as of Monday. Two state legislators have tested positive for COVID-19, and a third died of a suspected link to the infectious disease.

Whitmer wanted the Legislature to approve a longer extension of the expanded disaster declaration she signed April 1, requesting a 70-day extension from that date, which would have ensured her legal authority to unilaterally fight the crisis through June 10.

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But GOP leaders argued that is too long for a rapidly developing situation. Lawmakers met to approve a shorter extension despite legal uncertainty over their authority, calls for remote voting, the state’s rising case count and administration projections the pandemic is weeks away from peaking in Michigan.

The 23-day resolution approved Tuesday does not lengthen Whitmer’s stay-home order or other executive mandates, but it gives her continued ability to revise orders or write new ones. The governor has indicated she will likely issue a modified stay-home order later this week, and Republicans are pushing her to consider new exemptions for some industries.

The Senate acted quickly, using a voice vote to approve the concurrent resolution once 20 of 28  members had checked in, giving them the quorum legally required to act. Only a handful of lawmakers were allowed on the floor at any one time. 

“Twenty-three days makes a bunch of sense to us because … our databases, our information and our ability to make decisions and assess actual circumstances is changing every day,” Senate Majority Leader Mike Shirkey, R-Clarklake, told reporters in a Zoom teleconference after the session. 

The Legislature may decide to extend Whitmer’s authority again later, Shirkey said, but Republicans feared a 70-day extension would send a message to the public that the stay-home order would last that long, “and we think that’s a very dangerous message to send,” he said.

Lt. Gov. Garlin Gilchrist, who wore an “Everybody Vs. COVID-19” shirt (but not a mask) at the rostrum, gaveled the Senate session to order at 10 a.m. Shirkey removed his mask to sing “It Is Well with My Soul” and read a passage from the Bible.

The Republican majority rejected a Democratic amendment to extend the emergency 70 days, as Whitmer had requested. The whole process, including a final vote conducted by voice, lasted 13 minutes.

“I wish the extension was longer, but we will continue to keep moving forward and doing our jobs just like millions of Americans are being asked to do,” Senate Minority Leader Jim Ananich, D-Flint, said in a statement. “The coronavirus waits for no one, and that’s why Gov. Whitmer must be equipped with the full authority to respond to this pandemic quickly.”

The House session took much longer under safety protocols implemented by Speaker Lee Chatfield, R-Levering, who also did not wear a mask on the floor.

Members waited in their cars until they were summoned by text message to the House floor in groups of five. Attendance took nearly three hours as Chatfield awaited a quorum of 55 members to proceed with a voice vote. 

He did not take up a separate resolution proposed by House Minority Leader Christine Greig, D-Farmington Hills, that would allow legislators to participate in future sessions remotely using electronic and interactive technology during a state of emergency or disaster. 

“This is the time for the Legislature to lead, not shut down because we’re not using the communication tools designed just for this purpose,” Greig, who wore a mask she made herself, said in a statement after session. 

Chatfield referred the resolution to a committee without comment. He said Monday the Michigan Constitution does not allow remote voting — a position some experts dispute — and suggested technology and transparency concerns. 

“We certainly don’t want to allow that precedent to be started unless it’s done the right way,” he said. “We will be having those conversations.”

Legal debate

Whitmer on Monday questioned why legislative leaders would meet amid a pandemic to approve what she contends will amount to a one-day extension of her emergency authority. 

The governor last week rescinded her initial March 10 emergency declaration and replaced it with a broader emergency and disaster declaration. The administration argues the second declaration is now good for 28 days, and she was requesting an extension through June 10. 

“It really doesn’t make a whole lot of sense to come in just to extend for one day,” Whitmer said Monday. “I would hate for them to have to come back at the height of the crisis that we’re confronting.”

Extending the emergency declaration through May 1 “will allow the governor to continue her important work while still giving local residents hope that they will have a real plan presented to them sooner than the end of June,” Chatfield said in a weekend letter.

Bridge Magazine spoke with two Michigan attorneys who were as split on those legal questions as the governor and GOP leaders. 

Whitmer “did issue a new state of disaster declaration, and if you follow 28 days from that, she’s right,” said Steve Liedel, an attorney who served as chief legal counsel under Democratic former Gov. Jennifer Granholm.

The Legislature can pass laws like the Emergency Management Act, but it’s up to the governor to interpret and execute those laws, he said.  “This notion that the clock started 28 days before the state of disaster was declared is inconsistent with the statute.”

But no lawyer could tell a judge with a “straight face” that Whitmer’s initial and expanded declarations arose from separate dangers or risks, said John Bursch, the state’s solicitor general under Republican former Attorney General Bill Schuette.

Bursch argued Whitmer’s second order did not reset the 28-day clock for legislative review. 

“At the conclusion of 28 days. the governor has a choice: either to declare the state of disaster terminated, or ask that the Legislature extend that,” Bursch said. “The governor lacks the power to unilaterally have a disaster emergency be in place for more than 28 days.” 

Without the kind of extension approved Tuesday, Bursch said residents or businesses impacted by Whitmer’s stay-at-home order could have standing to sue the state in court and challenge the governor’s continued authority. 

Experts disagree on whether Michigan law allows the Legislature to approve an extension that is shorter than the 70 days Whitmer initially requested. There’s also dispute over how much authority the governor has to act regardless. In her declarations, Whitmer has cited both the Emergency Management Act of 1976 and the Emergency Powers of the Governor law of 1945.

“It’s a good thing that [Whitmer and legislative leaders] both care about what the legal parameters of their authority are, and that they’re talking back and forth to try to work out a political way so there’s not a legal crisis,” Bursch said. “That’s the way this should work.” 

Economic concerns

Shirkey on Tuesday also announced formation of a new “safe behavior for safe workplaces” Senate workgroup that will develop recommendations for Whitmer on how and when to re-open businesses and industries forced to close amid the pandemic.

“This in no way is an indication that we think there should be a complete wholesale lifting of restrictions,” Shirkey said. “We think a home-work-home executive order and continuing to restrict unnecessary travel and unnecessary congregating is perfectly legitimate.”

Sen. Ken Horn, R-Frankenmuth, will lead the panel that will also include senators Wayne Schmidt, R-Traverse City; Curt VanderWall, R-Ludington; Stephanie Chang, D-Detroit; Sylvia Santana, D-Detroit; and Jeremy Moss, D-Southfield.

Shirkey advocated for a “surgical” approach to reopening businesses and suggested the need to do so in phases. A lawn mowing or landscaping company might be able to reopen soon and safety maintain social distancing, he said, but concerts at Ford Field in Detroit may be “way down the road.”

“We’re talking about finding that transition in the middle between those two,” he said. 

While health experts say the coronavirus spread is not limited by geographic borders, Chafield has urged the governor to “begin looking for ways where we can either regionalize our COVID-19 restrictions or ease back into normalcy through activities or work when it can be done within the CDC recommendations and guidelines.”

“The state of Michigan is diverse, and a one-size-fits-all approach to COVID-19 is not necessarily the best approach,” Chatfield said last week. 

Horn said the Senate workgroup will gather information from businesses, medical experts and constituents across Michigan to develop a plan on “how to get Michigan back to work where we can, when we can and in a safe manner.”

Whitmer has established her own economic advisory team, headed by DTE Energy CEO Gerry Anderson, to consider similar issues. 

Shirkey and Horn said they hope the Senate group supplements those efforts. They plan to share recommendations with Whitmer by April 17.

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