Legislature Has a Role in Emergencies

Last week Gov. Gretchen Whitmer urged the Legislature not to meet to discuss an extension of the state of emergency declared because of the COVID-19 coronavirus. This would be a mistake, and the governor should continue to embrace close collaboration with the Legislature and should not sideline it in this emergency.

The debate is over whether the Legislature should extend Gov. Whitmer’s emergency declaration, which was issued March 10. “I think it is very inadvisable for them to congregate and start meeting,” Gov. Whitmer said, according to Gongwer, referencing the untimely death of Rep. Isaac Robinson, D-Detroit, reportedly due to COVID-19.

I have been impressed with Gov. Whitmer’s leadership in this crisis. She’s moved quickly, carefully explained her orders to the people, learned from other governors and embraced a wide range of stakeholders regarding the stay-at-home order. Gov. Whitmer has invoked what’s best about the people of Michigan and regularly reminds us that we’ll get through this. Bravo.

But to suggest that another branch of government should not perform one of its roles is troubling. Gov. Whitmer should not overlook the clear constitutional and statutory responsibilities the Legislature has been given, even during emergencies.

The people’s trust in the institutions of government comes, in part, from our long-standing system of checks and balances. The branches of government are coequal, with separate responsibilities. Each branch can check the power of another branch, but cannot usurp the other branch’s role. While not every state constitution does this, the Michigan Constitution expressly discusses the separation of powers in Article III.

This is not a dull recitation of a constitutional maxim; the separation of powers is relevant in an emergency. Michigan residents are more likely to embrace emergency measures that are vetted by multiple branches of government.

The governor of Michigan is not given emergency powers in the state constitution; those powers are a matter of statute enacted by the Legislature. Those statutes give the governor extraordinary, but temporary, power; the laws also establish roles for the Legislature and the courts in emergencies. Most notable, the Legislature is given the power to review a governor’s declaration of disaster or emergency after 28 days. The governor must request any extension of the declaration, which the Legislature can solely approve. The Legislature may also make certain appropriations related to emergencies.

Apart from the legal realities, Gov. Whitmer and the Legislature are better off conferring closely. Diverse opinions will benefit the important decision-making to come, and the Legislature still provides a valuable representation of the people’s will.

Senate Majority Leader Mike Shirkey and House Speaker Lee Chatfield have frequently praised the Gov. Whitmer’s emergency steps. Gov. Whitmer would do well to continue encouraging this collaboration. A partisan fight between state leaders would only convince residents that politics — not public health — is driving decision-making in Lansing. We need more from our leaders right now.

No doubt the legislative leadership is aware of the need for socially distant deliberations and voting. They would have watched the U.S. House of Representatives and Speaker Nancy Pelosi consider voting options for approving the coronavirus stimulus bills. The National Council of State Legislature is tracking the procedures state lawmakers have adopted to ensure continuity of operations while protecting members and staff.

One idea for the Michigan Legislature to consider is to allow remote voting, an idea the Mackinac Center proposed in 2017. This option, which may require an in-person vote to modify each chamber’s procedural rules, could allow lawmakers to continue performing their responsibilities in this crisis.