Over the last month Governor Gretchen Whitmer has declared a state of emergency, closed schools and businesses, and ordered Michigan residents to stay home.
But where do those powers come from? And what are their limits?
When Governor Whitmer declared a state of Emergency on March 10th she cited two state statutes - the Emergency Management Act of 1976and the Emergency Powers of the Governor Act of 1945.
Michael Van Beek is the Director of Research at the Mackinac Center for Public Policy and has been looking at the two acts.
“The one that was created in 1945 actually came out of race riots in 1943. The police asked the legislature to create this bill and create these powers for the Governor because they thought it would help them deal with the type of thing like a race riot.”
Those same powers were invoked by Governor George Romney during the riots of 1967.
Van Beek said the Governor’s emergency powers are intentionally broad. Under the acts the Governor can promulgate such rules, orders, and regulations “necessary to protect life and property.”
“In the statute itself it says ‘these are meant to be broad.’ It says that specifically,” Van Beek said.
One caveat, added in 2006, is that the Governor can not use emergency powers to seize “lawfully possessed firearms.”
Bill Whitbeck is the former Chief Judge of the Michigan Court of Appeals and worked as an advisor to Governor George Romney during the Detroit riots of 1967. He said one unusual thing about the two acts is that the 1976 act defers to the 1945 act.
“And under the old act, the way I read it, the Governor’s powers to issue a state of emergency or declaration of emergency are not limited by geography or time.”
That has immediate implications for the legislature. Under the 1976 act the Governor must receive approval from the legislature to expand the state of emergency beyond 28 days.
Governor Whitmer has requested an emergency extension through mid-June but the legislature only approved an extension through May 1st.
Whitbeck said because of the way the statutes are constructed, the Governor would be on safe ground to extend the emergency declaration without legislative approval.
“We can argue all we want about the ins and outs of this 28 day limitation and how it’s supposed to operate but rather adroitly Governor Whitmer, who is a very competent lawyer, cited not only the new act which includes the 28 day limitation, but also the old act and the constitution, neither of which limit her.”
Steven Liedel served as chief legal counsel to Governor Jennifer Granholm and legal counsel for the transition of Governor-elect Whitmer. He said so far Whitmer has made clear she wants to work with the legislature.
“She may just continue to work with the legislature for those reasons. We’ll work with you and if you want to extend it great. If not, she has a duty under the law to take the actions necessary. She seems, thus far, to be taking those actions pretty seriously.”
The Governor’s Office did not respond to our request for comment on whether Whitmer will expand the state of emergency declaration beyond the legislature’s new deadline.
Audio of Governor George Romney's state of emergency declaration, Detroit, MI, July 1967; 852178-SR-442-1, comes courtesy of the Bentley Historical Library at the University of Michigan.