The resolution would not extend any of the executive orders but would prolong Whitmer’s authority to issue or amend those orders another 23 days, said Senate Majority Leader Mike Shirkey, R-Clarklake.
Such a move would extend the declaration until April 30, the same day that federal guidance on social distancing requirements is currently set to expire.
The Legislature is scheduled to meet Tuesday to consider the concurrent resolution in what is expected to be a unique session with protocols in place to prevent the spread of coronavirus.
“It will be safer than going to the grocery store,” Shirkey said.
The Legislature’s plan to approve a shorter duration appears to be in conflict with the law, according to Whitmer’s office.The law allows the Legislature to either approve or disapprove the governor’s, said Whitmer’s spokeswoman Tiffany Brown.
“It does not authorize (the Legislature) to approve an extension for an amount different than the governor’s request,” Brown said.
The session will be the Legislature’s first since March 17 and the first held since the suspected COVID-19 March 29 death of State Rep. Isaac Robinson, D-Detroit, and the positive coronavirus result of State Rep. Tyrone Carter, D-Detroit, on March 22. Carter said he is feeling better.
In addition, anyone entering the state Capitol that day will have his or her temperature taken and be asked a series of screening questions by the Michigan State Police.
The process of approving the resolution will likely take a couple of hours, Shirkey said.
‘Selective’ participation
While the Senate can’t force members to stay away, the Senate will be “selective” in which members participate, Shirkey added, noting that some lawmakers live far away geographically and some have health problems.
Any lawmaker who was exposed to a person with COVID-19 or is feeling symptoms should stay home, Chatfield said in a Saturday letter to House Democratic Leader Christine Greig of Farmington Hills.
“…the people of Michigan rightly expect us to do at least as much
as they are doing in these difficult times,” Chatfield wrote. “Millions of Michiganders who are unaffected are showing up for work every day to keep our state moving.”
The Democratic governor urged legislators on Thursday morning to consider the resolution at a later date, but Brown changed course later in the day and said lawmakers should come in Tuesday, “extend 70 days and return to their communities like the rest of us.”
Shirkey and Chatfield have opposed the full 70-day extension, arguing that they could approve a shorter timeline and meet again at a later date for any additional extensions that may be needed.
Residents deserve answers about delays in the unemployment system, better transparency regarding testing and the reach of the virus and a plan from the state to get “back to work” and “back to normal,” Chatfield said in the letter to Greig.
The abbreviated extension through the end of April will give Whitmer more time, but also give residents hope for a plan for the future “presented to them sooner than the end of June,” Chatfield said.
But Sen. Curtis Hertel, D-East Lansing, said he’s hoping “common sense will prevail” and lawmakers will extend the declaration for 70 days so they don’t have to come back in 23 days to cast another vote on the matter.
If the virus continues to spread, it could be more difficult to get a quorum so the Senate can act at that point, Hertel said.
Hertel argued that some Republicans argue extending the declaration will automatically mean the stay-at-home order gets extended for 70 days. Although it could be allowed to happen under the declaration extension, he said no one is talking about extending the stay-at-home order 70 days.
“No one is talking about that at this point,” Hertel said. “There should not be the assumption that the governor is going to do anything that goes beyond what the doctors and scientists are telling her to do.”
Hertel pointed to a Friday Fox News interview with Sen. Peter Lucido, R-Shelby Township, in which the discussion focused on the idea of extending the stay-at-home order for 70 days.
“We’re not going to allow 70 days because it’s an arbitrary number,” Lucido said at one point, explaining that it should be looked at on a week-by-week basis.Greig urged against meeting without stringent protocols in place to mitigate the spread of the virus in a Saturday letter and criticized the idea that, if forced to meet Tuesday, the chambers would consider extending the state of emergency any fewer than 70 days.
Whitmer’s expansion of the state of emergency Wednesday already extended the deadline to April 29, Greig argued. So a concurrent resolution that extends to the deadline to April 30 is nothing more than “political theater,” she said.
“By approving the 70-day extension requested by the governor now, we would be providing the governor, doctors and nurses, and first responders with the tools they need to fight this virus while protecting members and staff from unnecessary risk,” Greig said.
Do emergency powers end Tuesday?
It’s a matter of debate whether Whitmer’s emergency powers would expire Tuesday without legislative action. The governor’s office maintains they won’t.
Under the Emergency Management Act of 1976 cited in Whitmer’s state of emergency, the governor’s authority to issue executive orders remains intact for 28 days unless a requested extension is approved by the Legislature through concurrent resolution.
Issued March 10, the 28-day timeline for Whitmer’s initial state of emergency expires Tuesday without legislative approval of an extension.
But Whitmer issued Wednesday a new order expanding the initial state of emergency and declared a state of disaster for the first time. The state of disaster also carries a 28-day shelf life, said Steven Liedel, former chief legal counsel for Democratic Gov. Jennifer Granholm, who served from 2003-2010.
The Wednesday order “declared a new emergency, taking into account what we now know about the breadth of this crisis, and also for the first time declared a state of disaster,” Brown said. “The law is clear that these declarations last for 28 days before they need extension by the legislature.”
Even if the governor’s timeline wasn’t extended under the declaration of disaster, there is another law cited in Whitmer’s emergency declaration that does not include a sunset.
The Emergency Powers of the Governor Act of 1945 allows Whitmer similar emergency powers, but with less specificity than the Emergency Management Act. The 75-year-old law sustains the governor’s emergency powers until a “declaration by the governor that the emergency no longer exists.”
“She’s asking them to do the right thing and she has determined given her duties that the state of disaster should be extended 70 days,” he said. “They don’t get to play games and say we think it’s this deadline or not.”
While the governor has “multiple sources of independent power” in a time of emergency, the Emergency Management Act of 1976 includes “special liability protections” for health care workers that the Emergency Powers of the Governor Act of 1945 does not, Brown said.
“These first responders deserve the confidence that they will be protected for the duration of this crisis when they take the actions we need them to take,” Brown said.
In order to extend a state of emergency, the Emergency Management Act requires a concurrent resolution from the Legislature upon requests from the governor for “a specific number of days,” Greig said.
In that sense, the Legislature can approve or disapprove the request but not modify it, both Whitmer’s office and Greig argued.
“…you are embarking upon an unprecedented course of action that is inconsistent with the text of the Emergency Management Act and past precedent in the Michigan Legislature,” Greig wrote in her Saturday letter.
Chatfield pushed back on the idea that Whitmer’s Wednesday expansion constituted a 28-day extension and rebuffed Greig’s position that the Legislature could not modify the approved extension.
“Your interpretation results in an obvious absurdity — that any governor could just revise and reissue declarations in perpetuity, rendering the clear language of the law and the legislative branch meaningless,” Chatfield wrote in a response to Greig’s Saturday letter. “The idea that the Legislature cannot determine the length of an extension is also inaccurate, without precedent and contrary to both state law and logic.”
References to both the 1976 and 1945 laws in the orders appears to be a “belt and suspenders approach,” said Republican former Lt. Gov. Brian Calley.
“The scope of the disaster had to be expanded in order for the governor to make the decision on education without going through the process of amending the law in a more traditional way,” said Calley, who is now president of the Small Business Association of Michigan.
“I’m very confident that the purpose of the declaration was not to extend the time,” he said. “The reason I’m confident is that the governor at the same time also asked the Legislature to extend the declaration.”
Since the GOP-controlled Legislature is working with the governor to reach a compromise extension of the emergency declaration, some legislative observers expressed hope the legal limits of the declaration won’t need to be tested.
Still, the Legislature’s understanding is that the governor’s emergency declaration under the Emergency Management Act would end Tuesday, Shirkey spokeswoman McCann said.
“I hate to say it’s a bit of an academic debate, but that’s what it might come down to,” McCann said. “(The governor’s office) asked it of the Legislature, so they’ve implied they also feel they need approval and so that’s what we’re operating under.”
eleblanc@detroitnews.com
cmauger@detroitnews.com
As usual, rather than quietly work out a reasonable compromise on behalf of the citizens of Michigan, both the Governor and the leaders in the Legislature posture positions of power.
This is the kind of antics that continue to frustrate Michigan voters and underline their disgust for both parties. Show some statemanship!!
Right on. But the gov won the vote. Let’s hope she doesn’t win a second term.
The solution to this problem is actually quite simple. But first, the CORRECT problem has to be identified. Believe it or not, the Chinese Virus is not the problem. Each year, thousands die from the flu. We don’t halt society because of it. That being said, this Kung Flu is apparently MUCH more contagious than a regular strain of the flu. And if you are unfortunate enough to get it, you’re hit with a wallop. (Much like a hangover that never seems to go away) So the CORRECT solution is to keep others at a distance. This is why the big box stores have VOLUNTARILY chosen to limit the number of people entering their establishments. It bears repeating–a government decree was not needed for them to take this action.
The idea of the government determining which businesses are “essential” and “non-essential” is preposterous. Every business is essential, or it would not remain in business very long. Closing golf courses and landscape companies is not going to help anyone. Giving a warning to a car dealer in Menominee or a car wash in Portage to close down or face fines is foolish. Giving an appearance ticket to individuals outside in their yards in Madison Heights is the heighth of stupidity. In none of these examples were a high number of people congregating. County prosecutors should take note that this is an election year, and frivolous civil infractions, closing down businesses, etc. are sure to be remembered at the ballot box.
All that is necessary is for people to stay away from each other. This can be accomplished in numerous ways. First, by now 99% of the population realizes that a required distance is needed. That alone is a major step. Second, if someone is not feeling up to par (golfers included), then they should probably remain indoors and monitor their condition. Third, if any business can be conducted from home, it should be. Fourth, large crowds of people anywhere must be strongly discouraged and dispersed..
Ironically, those businesses getting hurt the most right now are small businesses, which are not packed with people at any time, which is why they are termed small. If a painter or roofer has to work on the exterior of a house, it is doubtful that dozens of workers will be involved. A one-chair barber shop cannot conceivably pose a threat. A real estate title office always has at least a six foot distance between employees. Car dealers do not have their salesmen sitting close together. Likewise in lawyers offices. The list is voluminous. So any small business should be allowed to reopen forthwith. This doesn’t mean that those who can work off-premise won’t. Obviously we know more today then we did less than a month ago. This means that people are acting differently than before, and will no doubt act differently for at least the remainder of 2020. Whether the government orders them to or not.
As to bars and restaurants, an easy solution is to reduce the amount to people allowed inside at any one time. Most businesses open to the public have a capacity rating posted. So if the maximum capacity is 100, then it should be reduced to the amount that will limit close contact. Based on today’s information, it is doubtful that these establishments will operate at capacity anytime soon.
It goes without saying that hospitals, nursing homes, and anywhere else people are already uncomfortably close to each other should remain off-limits to most parties.
While this calamity is in progress the public needs to know more, MUCH more, concerning the individuals who have caught COVID-1984; both living and deceased. Such as age, sex, race, and most important of all, health history. This will allow others to determine the best course of action for them to take to preclude falling into the same category as those infected.
On Tuesday, April 7th, the legislature will be called into session, as well it should be. If the public can ‘risk’ entering a grocery store, then the house and senate can ‘risk’ entering the Capitol. After the debate deemed necessary, the citizens of Michigan will then expect a ROLL CALL VOTE. With everyone on record indicating where they stand. Pork must be off the table. The national elected officials are demonstrating their continued irresponsibility by larding the already bloated federal budget. This is a rotten example for state elected officials to follow.
This is a crisis and should be addressed appropriately. But some factors have yet to be discussed. Will the divorce rate skyrocket? What about bankruptcies? How many businesses will NEVER reopen? These variables must also be taken into consideration this Tuesday. The debate should not only be about physical health, but mental health as well.
The task at hand is nothing more than a simple balancing test to determine what opens and when. The methodology employed should be such that will allow the maximum number of businesses to reopen immediately. If this is not successful, then the only methodology needed will be to determine how best to deal with those who become unemployed. And divorced. And bankrupted. Most funeral homes will already be busier than normal. Let’s ensure its not because of increased suicides.
Here’s hoping that the legislature is smarter than the governor and prevails in this one.
Politics as usual: Whitmer is more concerned with pandering to her base rather than truly representing the people.
For any government to play the role of judge, jury, and executioner as to what constitutes “essential” is downright fascist. Encouraging / requiring protocol for social distancing is one thing, but mandating that certain businesses be shut down is cringe–worthy Orwellian.