LANSING – After the Republican-controlled Michigan Legislature refused to extend the emergency and disaster declaration that was set to expire at midnight tonight, Democratic Governor Gretchen Whitmer on Thursday took swift action by signing three new executive orders she said is aimed to continue fighting COVID-19 and save lives.
Thursday’s orders include:
• Executive Order 2020-66, which terminates the existing state of emergency and disaster declarations issued under the Emergency Management Act in Executive Order 2020-33.
• Executive Order 2020-67, which clarifies that a state of emergency remains in effect under the Emergency Powers of the Governor Act of 1945. The order is effective immediately and continues through May 28 at 11:59 p.m. The governor will evaluate the continuing need for this order prior to its expiration, and if she determines that an emergency no longer exists, will terminate or extend the state of emergency declared in this order.
• Executive Order 2020-68, which declares a state of emergency and a state of disaster across the State of Michigan under the Emergency Management Act of 1976. The state of emergency and state of disaster declared by this order will be effective through May 28, at 11:59 p.m., and the governor will evaluate the continuing need for the order prior to its expiration, terminate the states of emergency and disaster if the threat or danger has passed.
Also on Thursday, Whitmer extended by signing EO 2020-69, until May 28 her extends her previous order that temporarily closes certain places of public accommodation such as theaters, bars, casinos, and more. In order to maintain social distancing the order also limits restaurants to carry-out and delivery orders of food and beverages.
“COVID-19 is an enemy that has taken the lives of more Michiganders than we lost during the Vietnam War,” said Whitmer. “While some members of the legislature might believe this crisis is over, common sense and all of the scientific data tells us we’re not out of the woods yet. By refusing to extend the emergency and disaster declaration, Republican lawmakers are putting their heads in the sand and putting more lives and livelihoods at risk. I’m not going to let that happen.”
“Today (Thursday) I signed new emergency and disaster declarations using independent sources of statutory authority to make sure our health care workers and first responders have the tools they need to save lives and protect Michiganders,” said Whitmer. “We’re all in this together. Defeating COVID-19 is an all hands on deck moment for our state, and I remain hopeful that Republicans in the legislature will stop the partisan games and start working with me to re-engage our economy safely and responsibly.”
The Michigan Senate on Thursday approved a resolution sponsored by Senate Appropriations Committee Chairman Jim Stamas to allow the Senate to challenge in court any executive actions taken by the governor after the Legislature’s state of emergency extension expires on May 1.
“The Legislature is the people’s most direct representation in state government, yet the governor continues to dismiss and ignore this co-equal branch,” said Stamas, R-Midland. “The governor has repeatedly chosen absolute power over working together with the people’s representatives. She believes she can unilaterally grab total power over every Michigan family and hold onto that power for as long as she wants.
“The people have a voice, and protecting their voices and protecting their lives are not mutually exclusive. Unfortunately, the governor has decided to go it alone once again and the people of Michigan deserve better.”
Stamas said Whitmer issued Executive Order (EO) 2020-4 on March 10 declaring a state of emergency across Michigan to address the COVID-19 pandemic, and she issued EO 2020-33 on April 1 to include a state of disaster related to the pandemic. On April 7, the Legislature adopted Senate Concurrent Resolution 24 to extend the states of emergency and disaster through April 30.
Senate Resolution 114 says that without an additional legislative extension, Whitmer has a statutory obligation to “issue an executive order or proclamation declaring” the states of emergency and disaster terminated on May 1, according to Stamas.
“This resolution authorizes the Senate to defend the Legislature’s role and the people’s rights by bringing legal action if the governor attempts to extend her emergency powers without legislative approval,” Stamas said. “We’re all facing uncertain and stressful times. My hope is that our governor will change course and work with us to responsibly and effectively end this public health crisis, and that this resolution will not be necessary. In case that does not happen, we need to be able to stand up for our constituents, the people of Michigan and our system of government.”
State Rep. Sue Allor, R-Wolverine, also on Thursday, said the governor has again failed to work together with the state Legislature.
“For more than a month now, the growing concern over the threat of the coronavirus has dominated our daily lives – businesses are shuttered, classrooms are empty, and families and friends have been forced apart,” Allor said. "There is no question COVID-19 has caused an enormous amount of disruption for all of us. I know from speaking to many of you over the past few weeks that we are all yearning to get back to a state of normalcy as quickly and safely as possible.
“For the past few weeks, my legislative colleagues and I have joined Michiganders in urging Gov. Gretchen Whitmer to reconsider several of her executive orders, as we believe many of them are excessive in scope and that they frequently extend beyond what is necessary for protecting our families. Although I fully support practicing social distancing in public, as well as adhering to other recommended safety precautions, I cannot support the governor having unlimited, and unchecked powers – especially when she refuses to release certain data and information to substantiate her decisions. There is no question COVID-19 has caused an enormous amount of disruption for all of us. I know from speaking to many of you over the past few weeks that we are all yearning to get back to a state of normalcy as quickly and safely as possible.
“While recently loosening some of her more comprehensive restrictions is a good start, the governor must do more to work with the Legislature moving forward. Last year, she refused to work with the House and Senate to create a state budget, which led to her infamous veto rampage. And again, recently, she bypassed the Legislature in order to implement an expensive plan for repairing Michigan roads – which amounted to only a partial fix for Michigan roads and indebted Michiganders for generations to come – it is increasingly evident that this go-it-alone attitude has become her trademark.
“As in each of these cases, the harm experienced by Michigan families has forced the Legislature to clean up a mess created by an overly zealous executive branch of our state government. However, I firmly believe that a similar result can be avoided under the present circumstances if the governor will resolve to work with the Legislature in passing appropriate and responsive legislation.
“The truth is, many businesses will not survive Gov. Whitmer’s orders, as many families have already been dealing with crippling financial stress caused by the restrictions she has imposed. Additionally, many Michiganders are not receiving the medical attention they need, especially for non-COVID-19 related needs.”
Whitmer said the executive orders cite extensive data validating the existence of an emergency and disaster across the State of Michigan. Specifically, although the pace of COVID-19 spread has showed signs of slowing, the virus remains aggressive and persistent: to date (as of Thursday), there have been 41,379 confirmed cases of COVID-19, and 3,789 deaths from the disease—fourfold and tenfold increases, respectively, since the start of this month. And while COVID-19 initially hit Southeast Michigan hardest, the spread is now increasing more quickly in other parts of the state. For instance, cases in some counties in western and northern Michigan are now doubling every six days or faster.
She said moreover, the economic damage wrought by this pandemic—already severe—will continue to compound with time. Between March 15 and April 18, Michigan had 1.2 million initial unemployment claims. This amounts to nearly 24 percent of the Michigan workforce.
In a decision on Wednesday, April 29, the Michigan Court of Claims sided with Whitmer and denied a motion for preliminary injunction holding that the current Stay Home, Stay Safe executive order, and earlier versions of it, did not infringe upon the constitutional rights of Michigan residents, Democratic Attorney General Dana Nessel announced.
Nessel said the plaintiffs in Martinko et. al. v. Whitmer et. al. alleged that the “mandatory quarantine” imposed by the Stay Home, Stay Safe order (EO 2020-59) and the intrastate travel restrictions contained in an earlier version of the order (EO 2020-42) violate their rights to both procedural due process and substantive due process.
In the first substantive ruling examining the constitutionality of the executive orders, Court of Claims Judge Christopher M. Murray acknowledged in his opinion that the rights asserted by plaintiffs are fundamental.
“But those liberty interests are, and always have been, subject to society’s interests – society being our fellow residents. They – our fellow residents – have an interest to remain unharmed by a highly communicable and deadly virus, and since the state entered the Union in 1837, it has had the broad power to act for the public health of the entire state when faced with a public crisis.”
Murray stated that issuing injunctive relief “would not serve the public interest, despite the temporary harm to plaintiffs’ constitutional rights.”
The plaintiffs also alleged that the Emergency Management Act is an unconstitutional delegation of legislative power to the governor, but the court noted the act does not provide the governor with “uncontrolled, arbitrary power.” Instead, he indicated that the act provides for very specific procedures and criteria for the governor to declare a state of disaster or emergency, and what conditions qualify as a disaster or emergency.
“I am pleased with the court’s decision,” Nessel said. “This pandemic has already taken more than 3,600 lives in Michigan and many more around the world. The primary goal of the Stay Home, Stay Safe order has always been to protect human life.”