Is Limiting Governor’s Emergency Powers Possible in 2020?

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By Brad Williams

This week, the State Board of Canvassers approved a petition to repeal the law under which the Governor declared a state of emergency amid the COVID-19 pandemic.

This is a product of the months-long legal dispute between Democratic Gov. Gretchen Whitmer and the Republican-led Legislature on emergency declaration powers used to issue stay-at-home orders or keep gyms and bars closed due to health concerns.

The Governor is using a 1945 law to keep the emergency declaration in place, a move backed so far by the courts. Republican leadership is arguing in favor of a 1976 law that requires legislative approval of the emergency declaration every 28 days.

The petition approved this week is designed to allow citizens to initiate the repeal of the 1945 law in a fashion that makes it veto-proof by the Governor, forcing her to operate under the 1976 law with legislative oversight.

So, what comes next?

The group has 180 days to collect 340,047 signatures. That is about 1,889 signatures a day.

How successful that effort will be remains to be seen.

Social distancing measures may give many people pause to stop and sign, and will limit crowds where large numbers of signatures could be quickly attained. Yet, the motivation of those who feel the Governor has overstepped her powers is likely to be strong.

The success of the petition may also be tied to the realities of COVID-19 cases and deaths in the coming months changing voter sentiments to favor one side over the other.

Assuming the signatures are gathered, how does this work?
Once the signatures are gathered and certified by the Board of Canvassers, which is unlikely until early 2021 given the time needed to do so, the Legislature has 40 days to decide if they want to vote on the citizen-initiated effort. Approval only requires a simple majority, but a supermajority* to amend or repeal sections of the initiative, which is typically difficult to attain given it requires some support of the minority party.

The Michigan Legislature has approved initiated laws in this way with a simple majority nine times since 1963 when the constitutional requirements were enacted.

Should that occur, under the Michigan constitution, any law that is passed by the Legislature takes effect 90 days after the end of the legislative session or can be granted immediate effect.

Once again, a supermajority* vote would be needed to grant immediate effect, something the Democrats are also highly unlikely to support.

Possible outcomes for the limiting of powers becoming law would not happen until early 2021 or 2022 and include:

Early 2021 Becomes Law
If the Legislature musters the supermajorities needed to grant immediate effect necessary to most swiftly repeal the 1945 law called into question by the initiative, that likely could not occur until the first few months of 2021 at the earliest. If signatures are certified early (by December 2020), the legislature could also approve the initiative before a new legislature is seated in 2021, making it law 90 days into 2021.

Early 2022 Becomes Law
If it takes the full 180 days to collect and certify petition signatures and the Legislature approves the initiative as soon as it could possibly vote without immediate effect, the law would not be repealed until 90 days into the next legislative session, in early 2022.

2022 General Election Ballot
If the Legislature opted not to consider the petition, it would go before the voters in an upcoming election, which appears to be the most likely route given the 180-day signature shot clock and supermajority requirements.

Initiatives have been placed on ballots in this way 14 times since 1963 – eight were approved and six were rejected. Besides the state’s recent marijuana laws in 2008 and 2018, it has been 24 years since an initiative became law when casinos were authorized.

So, if signatures are gathered – and that’s still a significant “if” – the earliest the 1945 repeal could occur is a general election in 2022 where voters would decide the issue or early 2021 by a simple majority vote in the legislature if signatures are collected and certified early.

*Any fraction or percentage which is greater than one-half, i.e. 2/3, 3/5. According to the Michigan Constitution of 1963, the supermajority required to grant immediate effect to any law is 2/3. In order to amend or reject sections of an initiated law, the supermajority required is ¾.

Brad Williams is vice president of Government Relations for the Detroit Regional Chamber.

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