You can read her new executive order here. She put it out hours before Michigan’s Republican-majority Senate was going to vote to repeal a law from 1945 that she’s relied on as a legal basis for expanding her authority during the pandemic. (x) But Lower (MI-R) is hinting that the repeal may still go forward.
More about the legal source of her authority:
Whitmer argues she derives her emergency authority from two separate laws: The Emergency Management Act of 1976, which requires a legislative extension every 28 days, and The Emergency Powers of Governor Act of 1945, which does require any legislative action for continuance.
There are significant differences between the two emergency power laws, Whitmer said Monday. In particular, the 1976 statute, which requires legislative sign off, shields health care professionals from legal liability for services provided at the request of the state.
If the Legislature decides not to extend the emergency declaration under the 1976 law, Whitmer wouldn’t have to do anything else to extend the stay-home order, said Peter Ruddell, a lawyer at Honigman law firm and a former aide to GOP Senate Majority Leader Dan DeGrow.
“Both laws give the governor incredibly broad powers” to take action under a declaration of disaster or emergency, he said, so Republicans would have little luck arguing in court that she needs their approval.
However, Republicans may be able to argue that she overextended her powers under the emergency declarations by broadening the scope to address the “health, economic, and social harms” of the emergency, Ruddell said. “Such a declaration of emergency could arguably be beyond the police powers of the state.”
Both sides may prefer to negotiate and stick with the 1975 law to protect first responders. But if it goes to court, Ruddell said, “this is untested. We’ve never had a separation of powers issue in this state that has reached litigation of this magnitude.”