Gov. Gretchen Whitmer’s bold use of emergency powers during the coronavirus pandemic reached the Michigan Supreme Court on Wednesday as justices heard hours of arguments about whether she has illegally made far-reaching decisions without input from the Legislature.
Whitmer, a Democrat, has repeatedly ordered virus-related restrictions under a 1945 law that grants power to declare emergencies “when public safety is imperiled” but makes no mention of public health or a pandemic.
Whitmer’s critics, especially Republicans who control the Legislature, instead point to a 1976 law that says lawmakers get a say in emergency declarations after 28 days.
For six months, Whitmer has imposed — and subsequently eased — restrictions on Michigan’s economy, K-12 school system, health care and even visits to state parks, all in a desire to reduce the risk of the highly contagious virus, which has killed more than 6,500 residents.
Critics argue that a lack of collaboration has crippled many businesses that had insisted they could safely reopen. The Supreme Court coincidentally heard arguments on the day that gyms in large metro areas were allowed to open for the first time since March.
“This case is not about the wisdom of the governor’s decisions during this pandemic. It is instead about the structure of our government,” said Amy Murphy, an attorney for health care providers who have challenged Whitmer.
Murphy said the two laws about emergency powers should be applied together so the 28-day time limit is embraced.
The high-stakes case reached the Supreme Court in an uncommon way. A federal judge overseeing a lawsuit that makes state and federal claims about Whitmer’s powers asked for an opinion on the constitutionality of the Michigan laws.
It’s possible that the court still could turn down the judge’s request even after hearing arguments, although experts believe that’s unlikely. In a separate lawsuit filed by Republican lawmakers, two lower courts have upheld Whitmer’s use of the 1945 law, but that case hasn’t been accepted yet by the Supreme Court.
Whitmer has exercised an “enormous assertion of power,” Justice David Viviano said.
Eric Restuccia of the attorney general’s office said the governor’s authority has been appropriate, likening COVID-19 to a raging wildfire.
“While there has been some success with these firefighters trying to contain the fire, it threatens to break free,” Restuccia told the court. “The Legislature and the plaintiffs are telling us that there is no emergency, as if the firefighters can come home. But if they do, it will place our communities in jeopardy.”
Chief Justice Bridget McCormack wondered if the Whitmer administration could get around the dispute by citing public health laws to support its response to the pandemic.
The governor, meanwhile, said she believes the court will rule in her favor.
“We are in a stronger position than most other states in the nation because we got aggressive and took actions that were permitted under these 1945 powers,” Whitmer told a business forum. “An effort to take those away jeopardizes all the work that we have done and also puts us in a much weaker position when we have a second wave.”
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