Detroit Regional Chamber > Advocacy > July 23 | This Week in Government: 1945 Emergency Law Repealed In 2022 With House Action, Feds Decline To Investigate State On Nursing Homes

July 23 | This Week in Government: 1945 Emergency Law Repealed In 2022 With House Action, Feds Decline To Investigate State On Nursing Homes

July 23, 2021
Each week, the Detroit Regional Chamber’s Government Relations team, in partnership with Gongwer, will provide members with a collection of timely updates from both local and state governments. Stay in the know on the latest legislation, policy priorities, and more.

  1. Discussion Of UI Deal Falters As Whitmer Vetoes Moot Bill
  2. 1945 Emergency Law Officially Repealed In 2022 With House Action
  3. Feds Decline To Investigate State On Nursing Homes
  4. State: ELCRA Initiative Still Lacks Signatures; Campaign Disagrees
  5. Alternatives To MI Shot Sweepstakes Being Eyed To Increase Vax Uptake

Discussion Of UI Deal Falters As Whitmer Vetoes Moot Bill

Supplemental federal unemployment benefits to aid people unemployed during the COVID-19 pandemic will keep coming to Michiganders after Governor Gretchen Whitmer vetoed a somewhat toothless bill Tuesday that would have opted the state out of the program’s $300 weekly benefit for those who lost their job during the pandemic.

In a letter sent to the House, Ms. Whitmer explained that the federal compensation is scheduled to end September 4 and to enact HB 4434 would “violate federal law by ending payment of these enhanced UI benefits without the required 30 days’ notice.”

About 25 states have already set early termination dates to the extended federal unemployment benefits, per the House Fiscal Agency.

“In addition, the bill lacks immediate effect and would therefore not even take effect until 2022, by which time it will be moot,” Ms. Whitmer wrote. “For those reasons, I am vetoing it. Moreover, ending these enhanced UI benefits on July 31, as proposed by HB 4434, would drain $1.5 billion from our economy – money that will instead flow into our local economies and support small businesses.”

Initially, there were conversations regarding Ms. Whitmer agreeing to an end to the federal unemployment in exchange for raising the state’s weekly unemployment and child unemployment benefit. Under these discussions, the weekly unemployment rate would have been raised to $422 – bringing it more in line with other state unemployment payments in the Midwest – and the unemployment bonus for children would have gone up from $6 to $20.

In exchange, a deposit of $425 million would be made into the Michigan’s UI Trust Fund.

Sen. Ken Horn (R-Frankenmuth) said that a good faith negotiation between the Legislature, governor and various chambers of commerce did occur, but that “time and tools” were the major issues. Due to the bill being transmitted to the governor, there was not a vehicle for these unemployment agreements to be placed into and there was not enough time to draw up a bill to run through committee before the end of session in June.

Because of this, talks didn’t fall apart so much as hit the buzzer. Mr. Horn said he anticipates these conversations to resume, but that due to the governor choosing to veto an end to the $300 extended benefit means “the price tag just went up on that deposit” into the Trust Fund.

“Just me … without (an end to) the $300, my number is $1 billion. The trust fund should be sitting at $2.5 billion,” Mr. Horn told Gongwer News Service. “Businesses didn’t shut themselves down and people didn’t lay themselves off; this is the governor’s response from COVID. We need a significant deposit into the trust fund and then we will start talking about the weekly and child unemployment benefits. This will be win-win-win for the state, employers and employees.”

He added that the governor still has the power to end the $300 benefits as a “sign of good faith, an olive branch” but until then it will fall back on businesses to bear the brunt of side-effects from not ending extended federal unemployment payments.

“Had we begun this conversation earlier and worked through this process better … I think we could have solved this problem, but we came up short this time,” said Brad Williams, vice president of government relations with the Detroit Regional Chamber, who was part of negotiations.

Ms. Whitmer’s veto letter does mention shoring up the state’s weekly unemployment payments, making them “comparable to that of our neighbors” but does not list the amount she wants. She only noted that once the federal benefits end in September, Michigan’s unemployment benefits will revert to a maximum of $362 a week, or less than $19,000 a year – far below the federal poverty level for a family of four. That figure has not changed in almost 20 years.

“Across the entire country, employers are struggling to find workers to meet their needs. With our economy growing quickly, many workers are leaving for higher-paying jobs, leaving staffing challenges in their wake,” she wrote. “And many workers who could have filled those open positions have understandable reservations – about leaving their kids without adequate care during a nationwide childcare shortage, and about the risk of working in-person during the COVID-19 pandemic.”

Following the announcement of her veto, conservatives immediately issued statements of criticism, which painted the move as an assault on small businesses specifically.

“After unilaterally shuttering Michigan’s economy over the past year and destroying the livelihoods of countless small business owners and entrepreneurs, Governor Whitmer continues to kick them while they’re down,” MIGOP Chairman Ron Weiser said in a statement. “Paying people to stay home and not work while running around the state touting her commitment to small businesses is the height of hypocrisy.”

Likewise, Michigan Freedom Fund Executive Director Tori Sachs characterized the veto as an assault on small businesses, saying in a statement Michigan was “never going to help struggling local businesses until we stop spending extra tax dollars to keep people out of the workforce.”

However, had Ms. Whitmer signed the bill, it would not have taken effect until March 2022 because Senate Democrats denied the bill immediate effect. With the program scheduled to end in September, that means Ms. Whitmer’s signing decision was more about sending a message than policy impact.

1945 Emergency Law Officially Repealed In 2022 With House Action

After months of legal challenges and stalled votes to certify, the Emergency Powers of the Governor Act of 1945 will be repealed effective in 2022 with the passage of the Unlock Michigan initiated law brought before the Legislature after the group collected more than 400,000 signatures.

IL 1 passed 60-48. It will take effect 91 days after the Legislature adjourns for the year in December.

Democrats on the House floor mostly opposed the measure, saying it should go to the ballot for a vote rather than being enacted by the Legislature. Under the Constitution, while the process Unlock Michigan used could have put the proposal before voters in 2022, it also allows the Legislature to pass with a simple majority vote and bypass a governor’s veto pen.

Four Democrats joined all Republicans in voting yes: Rep. Sara Cambensy of Marquette, Rep. Tim Sneller of Burton, Rep. Richard Steenland of Roseville and Rep. Karen Whitsett of Detroit.

The 1945 law is the one used by Governor Gretchen Whitmer from May through early October 2020 to keep the state under an emergency declaration due to the coronavirus pandemic. It allowed her to suspend laws and issue various orders related to the virus and associated restrictions.

In October 2020, the Supreme Court ruled the law unconstitutional, so it has been unusable for the administration. Still, supporters and Republicans have pushed for the law to be repealed outright.

A majority of the court said the 1945 law was an unconstitutional delegation of legislative powers to the executive.

Ms. Cambensy said she has previously voted no on similar repeals of the law because she thinks there should be a replacement that provides more clarity on how the Legislature and Executive Office should work during a pandemic.

On Wednesday’s vote, Ms. Cambensy said the Supreme Court’s ruling should be respected.

“Some members in this chamber may already think we have a law that clearly defines the emergency powers we have in our state,” she said. “(But) it would behoove us to go back and talk about our differences during this pandemic and make sure we have a law that avoids vagueness and misinterpretation.”

Republicans blasted Ms. Whitmer’s use of the law before the Supreme Court ruled it unconstitutional and said the people had spoken through signing the Unlock Michigan petition and putting it before the Legislature.

However, the roughly 460,000 signatures submitted by the group that were deemed valid represent a fraction of the 8 million registered voters in the state.

“Michigan families faced incredible hardship during this pandemic, and far too much of it came from their own government leaders. Hundreds of thousands of our families, friends and neighbors changed Michigan forever when they decided they had enough and stood up to make a difference,” House Speaker Jason Wentworth (R-Farwell) said in a statement. “They took strong action to protect their families, their children’s education and their ability to make ends meet, and we can never thank them enough. They deserve a state government that is willing to do the same. They’ve earned that much. That’s why we had their back today and put this petition into law.”

House Minority Leader Donna Lasinski (D-Scio Township) called the vote on the House floor Wednesday “political theater.”

“Let’s be very frank, there was no conditions put on legislative power by the governor in this chamber. The governor never once vetoed any bill that was put on her desk as a solution or a way to help Michiganders through the pandemic that came out of the House. The reason she never vetoed anything is because nothing was ever put on her desk,” Ms. Lasinski said. “The only thing that was ever put on the governor’s desk that was brought up for a vote in this chamber, were items that limited the governor’s power to address the pandemic.”

She also said her members who voted yes on the bill were representing their constituents, and the Democratic Caucus includes a variety of opinions.

Fred Wszolek, spokesperson for Unlock Michigan, praised the action from the Legislature. The Senate passed the initiative last week.

“Our Unlock Michigan citizen army collected over 540,000 signatures in just 80 days. Now, 292 days later, we’ll complete our mission with a final vote in the Legislature to end Governor Whitmer’s rule by decree,” he said.

Unlock Michigan plans to pursue a second initiative petition to place a 28-day limit on public health orders issued by the state and local governments. That is how Ms. Whitmer issued pandemic orders following the Supreme Court ruling. Under the new initiative petition, only with the agreement of the Legislature could an order from the Department of Health and Human Services go beyond 28 days. Approval of local governing boards also would be required to extend orders from local health officers beyond 28 days.

Keep Michigan Safe, the group formed to oppose Unlock Michigan, said the Legislature has repealed an important tool for officials dealing with health emergencies.

“From day one, Unlock Michigan has been a brazen political power grab designed to hamper the abilities of those in government to act quickly and decisively during public health emergencies,” Mark Fisk, the group’s spokesperson, said in a statement. “Today, House Republicans voted to eradicate an important tool for elected leaders trying to save lives and stop the spread of deadly, infectious diseases like COVID-19, Legionnaires’, tuberculosis and anthrax.”

The National Federation Of Independent Business also praised the passage, saying it supports checks and balances between the Legislature and the executive.

“No governor, regardless of party affiliation, should have the unchecked and absolute authority to shut down entire sectors of the economy and state without oversight by the duly elected members of the state Legislature,” NFIB Michigan State Director Charlie Owens said in a statement. “This should be a non-partisan issue and we are disappointed that only a few Democrats in the House voted to assert their rights as lawmakers to provide a check and balance to the executive branch.”

Feds Decline To Investigate State On Nursing Homes

The U.S. Department of Justice has determined it will not open a civil rights investigation into any public nursing facility within Michigan.

Eleven months ago, the department – then under the direction of former President Donald Trump’s attorney general, Bill Barr – sent a letter to Governor Gretchen Whitmer requesting a considerable amount of state data related to its handling of COVID-19 in nursing facilities (See Gongwer Michigan Report, August 26, 2020). A similar letter went out to the governors of New York, New Jersey and Pennsylvania.

At the time, the governors receiving the letter – all Democrats – slammed the request as political.

In a letter to Ms. Whitmer’s chief legal counsel, Mark Totten, Steven Rosenbaum, chief of the Justice Department’s special litigation section, said after reviewing the information provided, “we have decided not to open a CRIPA investigation of any public nursing facility within Michigan at this time.”

CRIPA is the Civil Rights of Institutionalized Persons Act.

The Justice Department is now under the authority of an appointee of President Joe Biden. Mr. Rosenbaum, however, is a career employee of the Justice Department.

And the change in administrations did not stop the Justice Department from opening an investigation in February into the administration of New York Governor Andrew Cuomo’s handing of COVID-19 and nursing homes in that state.

Republicans have attacked Ms. Whitmer on COVID-19 in nursing homes, citing a short-lived executive order she issued early in the pandemic requiring COVID-19 positive patients not requiring hospitalization to be housed in sectioned off areas of nursing homes if it could be done so safely. Ms. Whitmer and the Michigan Department of Health and Human Services have said repeatedly the order was never implemented as written and quickly changed.

There is no data to suggest that Michigan saw more nursing home patients contract COVID-19 than other states without similar policies though that data is now the subject of a study by the Office of the Auditor General.

The Michigan Republican Party, in a tweet, attributed the decision to the “Biden DOJ” helping out their political ally Ms. Whitmer. However, again, the Department of Justice – weeks after Mr. Biden took office – decided there were grounds to investigate the Cuomo administration in New York. There has been some evidence that New York state deliberately manipulated its COVID-19 statistics to soften them but no such evidence in Michigan, and Thursday’s decision will only put greater distance between attempts to liken Michigan to New York.

Whitmer Press Secretary Bobby Leddy called on Republicans to stop the baseless attacks against the administration on nursing homes.

“Throughout the pandemic, our administration took swift action, following the best data and science from the CDC, to slow the spread of COVID-19 and protect Michiganders, including vulnerable residents in long-term-care facilities,” he said. “I want to be clear: at no point were nursing homes ever forced to take COVID-positive patients. Instead, we made the smart decision to require that residents who contracted this deadly disease be kept as far away from others as possible to prevent more people from getting sick. It’s deeply disturbing that Republicans sought to politicize the worst public health crisis in 100 years, especially when their own proposals would have contributed to even greater spread and loss of life – and, at every step of the way, they opposed the very actions the governor took that saved thousands of lives. With both the United States Department of Justice and Michigan attorney general rejecting these baseless attacks, it’s time to end the political games and work together to get things done for Michiganders.”

Attorney General Dana Nessel earlier this year declined to open a state investigation, saying nothing had been brought forward to suggest state law had been violated.

State: ELCRA Initiative Still Lacks Signatures; Campaign Disagrees

A petition initiative looking to add protections for LGBT Michiganders to the state’s Elliott-Larsen Civil Rights Act does not have the necessary signatures for certification after a second combing of documents submitted, the Bureau of Elections announced in a staff report late Wednesday.

Fair and Equal Michigan, sponsors of the initiative, are adamant that the bureau’s review of its signatures remains deeply flawed.

Previously, the bureau recommended the Board of State Canvassers not certify the petition on the grounds of it containing insufficient signatures. The board, however, pushed the decision back following its July 13 meeting after determining that enough last minute submission of materials had occurred that they wanted to assess everything prior to deciding (See Gongwer Michigan Report, July 13, 2021).

The latest staff report indicates the petition contains fewer valid signatures than the initial random, writing that of the sample taken only 297 valid signatures existed in that universe of 502 sampled signatures. Anything less than 369 signatures was grounds for denial of certification.

In the earlier staff report, that sample universe noted 337 valid signatures – still not enough to certify (See Gongwer Michigan Report, July 8, 2021).

“Based on the result of the random sample, the petition is projected to contain an estimated 263,460 valid signatures (at a confidence level of 100 percent), 76,587 signatures fewer than the minimum number required by Article II, Section 9 of the Michigan Constitution (340,047),” the report says. “The random sample result also indicates that the petition sponsor is 73 sampled signatures short of the minimum number required to draw a second sample.”

This time around, the bureau indicated there to be a 59.2 percent validity rate in the petition and lowered their projected number of valid signatures submitted in the entire filing to 263,460 signatures, down from the initially cited 298,943 signatures.

As a result, it readjusted its projected signature deficit from 41,104 to 76,587 signatures.

The Fair and Equal Michigan campaign has pushed back on the original staff report from the bureau and continues to do so. It also believes the state should accept the electronic signatures it has collected.

“Fair and Equal Michigan is confident in its analysis that the Bureau of Elections staff report is extremely flawed,” Josh Hovey, the campaign’s spokesperson, said in a statement Wednesday. “The documentation our campaign filed to the Board of Canvassers makes clear that we have more than enough signatures for our campaign to move forward and finally secure equal rights for LGBTQ people in this state.”

The group, the staff report says, tried to rehabilitate 184 sampled signatures. Staff rejected 139, 38 overlapped determinations from staff and seven were rehabilitated.

In the staff report, it does not address the electronic signature issue other than to say staff did not include them in the sample and compared signatures on petitions to signatures on the Qualified Voter File.

Fair and Equal Michigan, in a letter to the Board of State Canvassers, sought to rehabilitate 53 signatures of 97 deemed invalid due to the signer’s registration status. The bureau in its staff report said six of those were successfully rehabilitated.

In the letter, the group also pushes back on the bureau’s assertions of date errors and errors on the location of voter registration.

In total, the group says the bureau improperly invalidated 97 signatures in the sample. The 97 signatures would bring the total valid in the sample to 394 based on the second staff report, which would prompt the pulling of a second sample.

However, the first sample found 337 valid signatures and the 97 additional signatures would mean the effort did collect a sufficient number.

The number of valid signatures within the sample was reduced after challenges to the signatures deemed valid originally were confirmed to be duplicates, the report says.

The total filing by Fair and Equal Michigan, the group heading the ballot initiative, was 86,608 sheets containing 468,830 signatures. The state is excluding 19,697 sheets containing 23,520 signatures.

The Board of State Canvassers is scheduled to meet Monday, July 26, to vote on the petition.

Alternatives To MI Shot Sweepstakes Being Eyed To Increase Vax Uptake

Michigan is “evaluating ideas for what we can do to increase vaccination rates” every day, Lt. Governor Garlin Gilchrist II said Wednesday, and the MI Shot to Win sweepstakes may not be the last effort by the state to incentivize individuals to get inoculated against COVID-19.

While he didn’t go into specifics of what those programs could look like, Mr. Gilchrist did say that the ideas would come from discussions during the last year through coalitions like the Racial Disparities Taskforce and could target younger individuals and people of color.

“We also are going to continue to work with key voices across communities to engage them on their ideas and also ask them to speak out about the importance of getting vaccinated,” he told reporters, later adding that things like mobile units were helping to increase vaccination outreach efforts in communities of color or for those who are homebound.

Mr. Gilchrist’s comments came during a virtual press conference where two names were drawn for the $50,000 prizes as part of the sweepstakes – Sterling Heights resident Jenna Basaj and Rockford resident Paul Bareno – and one name, LaTonda Anderson of Grand Blanc, was drawn to win the $1 million prize.

Following the drawing, both he and Protect Michigan Commission Director Kerry Ebersole Singh were asked about Michigan’s slow vaccine uptake since the announcement of the sweepstakes, as the program was initially pitched as a way for the state to bolster its numbers.

Ms. Singh said that MI Shot was only “one strategy that we’ve deployed” and pointed to the summer months as historically being a slow uptake period for any vaccine, not just for COVID.

“Any public health expert would mention that – that this strategy was deployed at a time that we wanted to sustain and help create urgency,” she said. “This is just one thing. This work did not start July 1. We have been doing what we can … across communications channels, on education materials, outreach, community outreach, working with nonprofits. … But, if you hear of interesting ideas that you think would be helpful in our efforts, send them my way. We’re all ears.”

When the program kicked off, Michigan had a roughly 62 percent vaccination rate, comprising people who had received at least one dose of a COVID-19 vaccine. Nearly three weeks later, that number now sits at a little more than 63 percent.

This comes as COVID cases are again creeping upwards in Michigan, hitting above 3 percent Monday, a threshold which the state considers a key marker of the level of the virus’ spread (See Gongwer Michigan Report, July 20, 2021).

And while Mr. Gilchrist noted that 2 million individuals had entered the sweepstakes as of Wednesday, the vaccination of least 5.6 million Michigan residents would be needed to hit the state’s 70 percent inoculation goal.

Michigan’s Senate Fiscal Agency is projecting the state will hit 70 percent by December 5, a date that has held steady since last week.

“Every day and every moment when a person makes a choice to get vaccinated, it is a step in the right direction for the state of Michigan,” Mr. Gilchrist said. “We’re doing everything we can, including tactics like the MI Shot to Win sweepstakes to encourage, and maybe have that be the extra piece that people need to make the choice to get vaccinated. … We’re going to continue to pull all the stops. It is a key priority for the state of Michigan to do everything, every single day, to get folks vaccinated.”