Michigan House Votes to Repeal Emergency Law Used by Governor to Issue COVID-19 Restrictions

December 18, 2020 Updated: December 18, 2020

The Michigan House of Representatives voted early Friday morning to repeal a law Gov. Gretchen Whitmer used as authority to issue a series of public health orders in response to the CCP (Chinese Communist Party) virus pandemic.

The House voted 57-43 to repeal the Emergency Powers of the Governor Act of 1945, which authorizes the governor to proclaim a state of emergency but also lays out no role for the state legislature in rejecting or extending a state of emergency and puts no time limit on such an emergency. Whitmer has repeatedly cited the emergency powers law to justify broad restrictions since March, when the state of emergency was first announced in response to the spread of the CCP virus in Michigan.

In another 59-44 vote, the House passed a separate bill that would put a 28-day limit on the length of a pandemic order issued by the state health department, with any extensions requiring legislative approval. It would also prevent state health officials from limiting capacity at places of worship, and exempt businesses from ordered closures so long as they comply with health and safety measures required of other businesses that are allowed to remain open.

The Senate version of the bill was passed earlier this month. The Governor’s office decried the bill, arguing that the Democrat is “focused on doing everything in her power to protect the public’s health and save lives during this unprecedented pandemic.”

“The Legislature has spent the greater part of the year trying to tie the governor’s hands and hamper the ability to respond to a public health crisis that has killed more than 10,000 Michiganders,” spokesman Robert Leddy said last week. “All of our energy would be much better spent working together against the common enemy, COVID-19.”

The latest effort to curb Whitmer’s emergency powers came after a lawsuit challenging the constitutionality of the 1945 Emergency Powers law. In May, a group of legislative Republicans filed a lawsuit over Whitmer’s attempt to extend the state of emergency declaration, pointing to a 1976 law that an extension must be approved by the legislature.

In the complaint, Republican lawmakers argued the 1945 law, which states that the governor can declare an emergency and “designate the area involved,” is meant for local situations, not the entire state. They further argued that Whitmer’s unchecked emergency powers was a violation of the state constitution and requires a separation of powers “among co-equal branches of government.”

“Contrary to express legislative intent and the most basic understanding of checks and balances, the governor’s actions would leave Michigan in a state of emergency indefinitely, with no real constraints on the governor’s vast emergency powers during that time,” the lawsuit reads.

In a 5-4 decision, Michigan Supreme Court in October sided with the lawmakers, ruling that Whitmer’s use of the 1945 emergency powers law violated the state Constitution.