While the Governor's Stay at Home Executive Order remains in place through May 15th, the State's Emergency Declaration was set to expire on April 30, 2020.
Under the 1976 emergency powers act, the state House and Senate would need to vote to approve an extension of the state's emergency declaration. Senate Majority Leader, Mike Shirkey, presented the Governor with a deal that would have extended the Governor's state of emergency declaration for two one week periods in exchange for future "Stay Safe. Stay Home" orders to be enacted legislatively. She very publicly rejected the deal, and a day later moved to extend the declaration without legislative approval. To do so, the Governor used her executive order powers under the state's 1945 emergency powers act to extend her ability to suspend certain state laws into the future which does not require legislative approval. This action was expected.
However, she also issued 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 1976 emergency powers act requires the Legislature to extend a Governor's emergency declaration another 28 days. As mentioned previously, she did not get legislative approval to do so.
In an article this morning, MIRS News featured comments from several lawyers on this action,
Peter Ruddell, an attorney with Honigman, said by doing this, Whitmer "bifurcated them, in case one of them, presumably the 1976 one, is deemed invalid." In other words, each act has the ability to stand on its own, Ruddell said. He said the 1976 act could be the one deemed invalid because that's the one requiring legislative sign-off after 28 days.
Former House Speaker and attorney for Plunkett Cooney Tom Leonard disagreed and said the Governor made a tactical mistake by extending her state of emergency under both laws.
"Her declaration of emergency under the 1945 law is unsurprising. But it's perplexing that exactly one minute after terminating the COVID-19 emergency under the 1976 law upon failing to get the legislative approval that law requires, she issued another COVID-19 declaration under the very same law as if there were a 'new' emergency. I don't know how she will defend this position in court," Leonard said.
The legislature is expected to file suit and take the matter to the courts to argue the case that the Governor cannot continue issuing emergency executive orders into perpetuity. On April 30th, the House passed a resolution, HR 250, that gives Speaker Chatfield the ability to legally challenge the Governor for actions she takes in response to the COVID-19 pandemic, including her ability to issue overlapping emergency powers orders. The Senate has given Majority Leader Mike Shirkey the same authority.
We will keep you updated as this continues to unfold.