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Well, this was a feat. @NolanFinleyDN trotted out an entire parade of straw men in this morning's column. He misstates the law, obfuscates the issue, and makes a mockery of the very democratic principles he purports to defend.
A thread. 1/25 https://twitter.com/detroitnews/status/1254381461190279168
A thread. 1/25 https://twitter.com/detroitnews/status/1254381461190279168
Mr. Finley joins the ranks of those conflating @GovWhitmer's declarations of emergency and disaster with her Stay Home, Stay Safe ("SHSS") executive order. Such conflation serves a political end, but as a legal argument it is, charitably, nonsense. 2/25
Insofar as they rely on authority delegated by the Emergency Management Act ("EMA"), 1976 PA 390, the declarations of emergency and disaster are time limited without an extension by the Legislature. See MCL 30.403(4); MCL 30.403(3). 3/25
But orders issued pursuant to the Governor's emergency/disaster declaration are not subject to amendment, extension, or rescission by #MILeg. The EMA provides that "an executive order, proclamation, or directive may be amended or rescinded by the governor." MCL 30.403(2). 4/25
This approach is consistent with the separation of powers and the Legislature's own determination that: "[t]he governor is responsible for coping with dangers to this state or the people of this state presented by a disaster or emergency." MCL 30.403(1). 5/25
In other words, under the EMA and fundamental separation of powers principles, #MILeg can extend an emergency/disaster declaration or not, but it is not empowered to micromanage how the executive utilizes the authority delegated by the Legislature to respond to a crisis. 6/25
As such, Mr. Finley's suggestion that it is inappropriate or unlawful for the Governor to issue a "15-day extension of her emergency orders without getting approval from the Legislature" is without any basis in the law. 7/25
Moreover, the Governor's orders, including SHSS, have been issued under independent sources of legal authority. Only the EMA is time limited without an extension by the Legislature. The other principal statutory authority is the Emergency Powers of Governor Act, 1945 PA 302. 8/25
Mr. Finley claims the Governor is "switching between the two laws as it suits her purpose." It was the #MILeg that established that the EMA does not "[l]imit, modify, or abridge the authority of the governor to proclaim a state of emergency pursuant to [1945 PA 302] . . ." 9/25
". . . or exercise any other powers vested in him or her under the state constitution of 1963, statutes, or common law of this state independent of, or in conjunction with, this act." MCL 30.417(d). 10/25
Mr. Finley implies that the Governor's exercise of the authority delegated to her by 1945 PA 302 is inconsistent with the Legislature's intent. Well, let's look at what the Legislature had to say on the subject in the act itself: 11/25
"It is hereby declared to be the legislative intent to invest the governor with sufficiently broad power of action in the exercise of the police power of the state to provide adequate control over persons and conditions . . ." 12/25
". . . during such periods of impending or actual public crisis or disaster. The provisions of this act shall be broadly construed to effectuate this purpose." MCL 10.32. That's not the Governor speaking, it's #MILeg through the only means it rightfully can: statute. 13/25
Refusing to extend the Governor's declarations of emergency/disaster won't end SHSS. The Governor has the legal authority to act independent of 1976 PA 390. What it will do is cast a pall of uncertainty over the immunity provided to medical professionals under MCL 30.411. 14/25
Mr. Finley notes: "[SML] Mike Shirkey is weighing a lawsuit." Such a suit would almost certainly backfire as the extension mechanism (CR) under the EMA is likely unconstitutional. See Const 1963, art 4, § 22; Blank v Dep't of Corrections, 462 Mich 103 (2000). 15/25
Ironically, Mr. Finley praises the Legislature for its April 7th (not 9th, as he writes) vote to extend Governor Whitmer's emergency/disaster declarations for 23 days, rather than the 70 the Governor requested. Ironic, because *that* was almost certainly unlawful. 16/25
Both the plain text of the EMA and the Legislature's past precedent indicate that the House and Senate are to approve or disapprove the extension for a specific number of days requested by the Governor. Not some other number. 17/25
Governor Snyder requested that the Legislature extend states of emergency he had declared 3 times. On each of those 3 occasions, #MILeg approved Governor Snyder’s requested extension without modification. See 2016 SCR 23; 2016 SCR 28; 2017 HCR 1. 18/25
Those emergency declaration extensions were for 73, 122, and 56 days, respectively. The Flint water crisis state of emergency ultimately lasted 223 days. 19/25
Mr. Finley states that Governor "Whitmer is choosing instead to break her own precedent and extend the orders without legislative endorsement." It was, in fact, #MILeg that broke with precedent (and the law). And, again, he's conflating SHSS with the EMA declarations. 20/25
While making specious, superficial appeals to the law in his op-ed, Mr. Finley is talking about the law as he wishes it was, not Michigan law as it is today. Which, by the way, is also true of legislative Republicans. 21/25
Now, #MILeg could pass new *legislation* to limit the Governor's authority to respond to this crisis, but neither that nor any other legislating is happening due to Republican intransigence on the issue of remote participation by electronic means in committee and session. 22/25
If Mr. Finley wants to talk about the Legislature's "constitutional role" and "normal, checks-and-balance governing," perhaps he should start by urging the Republican leadership to take the House and Senate off the sidelines during this crisis. 23/25
It's not the Governor preventing the Legislature from conducting committee, session, and oversight. It's the Republican leadership, which seems content to limit the Legislature's role to tweets and partisan press releases. 24/25
Finally, these are serious issues that deserve to be treated as such. Hyperbolic claims of "dictatorship" distract from the pressing work at hand and the very real authoritarian creep happening elsewhere due to #COVID19, including Washington, D.C. 25/25
