Michiganders, if you hadn’t noticed, Mom and Dad are fighting. Governor Gretchen Whitmer has extended her stay-at-home order through May 28. The Michigan House of Representatives, led by Speaker of the House Lee Chatfield, doesn’t think that order is valid.
So are we under a stay at home order or not?
Governor Whitmer is resting her hat on the 1945 Emergency Powers of Governor Act. The order clearly gives the governor the authority to declare a “state of emergency.” Public emergencies include the following: “great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state, or reasonable apprehension of immediate danger of a public emergency of that kind.”
Lee Chatfield is resting his hat on the Emergency Management Act of 1976. The Act uses the same language, “state of emergency.” Under the 1976 law, the Governor can declare a state of emergency just like the 1945 law. However, with the 1976 law, she has to get legislative approval to extend the state of emergency beyond 28 days. Section 30.417 of the 1976 law says that the Emergency Management Act of 1976 doesn’t “limit, modify or abridge” the authority of the governor to proclaim a state of emergency.
The 1976 act says it doesn’t limit the governor’s powers, but then it limits the governor’s powers to 28 days. It not surprising that Governor Whitmer and Lee Chatfield have opposing points of view.
With the plain language of the law being unclear, we have to look at what’s called statutory interpretation. Statutory interpretation is following the steps to figure out what a law means when it’s not clear. There are a whole lot of things that can be a part of statutory interpretation. Let’s talk about a few big ones:
Subsequent legislation – When the legislature passes a law that’s in conflict with an earlier law, the earlier law is presumed repealed. While this might seem like a point for Chatfield, it’s not clear whether the 1976 law is actually in conflict with the 1945 law since the 1976 law says that it doesn’t limit the governor’s power to declare an emergency. Point for nobody.
Everything means something – In interpreting a law, it’s fair to presume that the legislature knows what they’re going and what words mean. The legislature didn’t include the 28-day limitation by accident. In statutory interpretation, we’re allowed to presume that the legislature meant it when they imposed the 28-day limitation. These words are not meaningless. Point for Chatfield. However, the words that say the governor’s powers are not limited are not meaningless either. Point for Whitmer.
Same phrasing – The same phrase, “State of emergency,” appears in both the 1945 and the 1976 laws. We can make the presumption that they have the same meaning in both laws, and that the 1976 legislature was talking about the same “state of emergency” situations that are in the 1945 laws. Point for Chatfield.
So we know a couple of things — the 28-day limitation has to mean something. Those words are in there for a reason. However, the law also says that the governor’s powers to proclaim a state of emergency are not modified by the act. The 28-days thing does modify the governor’s power to declare a state of emergency in that she can no longer do so indefinitely.
The best explanation that I can come up with is that the powers of the governor to declare an emergency are not limited, modified or abridged, but the power of the governor to continue the state of emergency is limited to legislative approval after 28 days. It’s a very close call.
Let’s just put it out there — likely, it will come down to the political makeup of the court hearing the case.
This is all separate and aside from constitutional problems with the executive orders.