Members of the Michigan Legislature have taken to wearing bullet proof vests, as armed protestors pace back and forth in the gallery above them. Pictures of armed Michigan residents clashing with the Michigan State Police, in and around the Michigan Capital Building yesterday, have circulated all over the world, from the Detroit Free Press to a British news source known as The Independent.
Michigan has made world news.
Believe it or not, but it’s actually legal to open-carry weapons in the Michigan Capital Building, so while the protestors are perhaps being excessively provocative, they are also conforming with Michigan law, and these protestors have every right to be angry: the person who IS violating Michigan law is Michigan’s Governor, Gretchen Whitmer.
Michigan has two laws covering declarations of emergency and states of emergency (I’m going to roll both of those things up for the rest of this article, calling them collectively a ‘state of emergency’). The first law was Public Act (PA) 302, passed in 1945. This law gave the Governor very broad, open-ended powers to declare a state of emergency, and then to effectively shut-down the state economy for as long as the Governor deems necessary, at the Governor’s sole discretion. Under this order, Gretchen Whitmer could order every Michigan resident to stay home until they die, and she would be fully within her executive powers in doing so.
Luckily for those Michiganders who do not wish to be locked up at home until they die, Michigan passed another law, Public Act 390, in 1976. This law also covers states of emergency within Michigan. This bill gives the governor broad powers to shut-down the state economy, but unlike the 1945 law, PA 390 limits the governor’s powers to 28 days. Any extension beyond 28 days requires legislative approval.
PA 390 includes oversight of the governor’s emergency powers, after 28 days.
There is a very important legal concept called ‘Implied Repeal’ that deals with situations where one law seems to conflict with another, older law. Implied Repeal is based on the fact that while we have a myriad of bills passing through the legislature, we only have one set of legally binding statues. When a bill becomes law, it changes the relevant statues, and through this process, a newer bill supersedes any portion of any older bill with which it conflicts. In other words, while Public Act 302, from 1945, is still on the books, any provision of it that conflicts with PA 390, from 1976, is null and void. PA 390 supersedes PA 302.
Governor Whitmer originally announced a state of emergency on March 24th. This state of emergency had an expiration date of April 13 (28 days from when it was declared). About a week before the state of emergency was set to expire, the state legislature approved extending it through the end of April and Governor Whitmer actually expanded the shutdown for a couple of weeks, before relaxing it a little through April 30. As of April 30, Gretchen Whitmer was in full compliance with the law.
As May 1st approached, the state legislature began reaching out to Governor Whitmer, to discuss another extension. The state legislature wanted a partial re-opening, but Governor Whitmer did not want to re-open the state at all. Whitmer refused to even enter discussions with the legislature on terms for extending the shutdown.
Whitmer took two positions. One position was that she, as Governor, has unrestrained powers under PA 302 from 1945 to keep the state under lockdown, without legislative approval, for as long as she likes.
Gretchen Whitmer’s second position was that each executive order represents a brand new state of emergency, and as such, under PA 390 from 1976, she can keep the state locked down as long as she damned well pleases, provided that she makes a new executive order at least once every 28 days.
The bottom line is that Gretchen Whitmer has assumed dictatorial powers for as long as she wishes to assume them, with no oversight whatsoever, and in doing so, she has told both the state legislature, as well as the people of Michigan, to go to hell.
People do not like being told to go to hell, by a governor who is grossly exceeding her authority, and that is why people are protesting. Those protestors who are carrying guns are doing so because they are legally allowed to open-carry within the state capital.
As of today, the extension the legislature approved has expired, and Michigan is no longer under a legal state of emergency. At the same time, Gretchen Whitmer has illegally extended the state of emergency, and the shut-down, until May 28, and the state legislature has responded by challenging Governor Whitmer’s extension in court.
One thing to understand is that the disagreement is not over whether or not Michigan should completely reopen. Neither the legislature, nor the governor, wants to completely reopen the state. The legislature and the governor differ only in terms of what the specifics of an extended shut-down should look like.
Understand that Gretchen Whitmer has no power to extend the state of emergency, nor to make executive orders pursuant to the powers she has under a state of emergency, without legislative approval, and that Gretchen Whitmer has done so anyway. Understand that Gretchen Whitmer’s emergency powers, as of 1976, are subject to legislative oversight (after the first 28 days), and that Gretchen Whitmer is assuming unilateral powers to extend stay-at-home orders, and to shutter most businesses, indefinitely, without any oversight at all.
Understand that Michigan has the most draconian shut-down orders in the country, and that as of today, Gretchen Whitmer’s orders violate not only state law, but also our Constitutional protections defined in the Bill of Rights.
These are extraordinary times, but what Gretchen Whitmer is doing is the largest illegal powergrab in Michigan’s history, and those who are protesting have every right to be angry.
My message to the protestors is not to protest the legislature. For the most part, the legislature is on the side of the protestors. It’s Governor Whitmer who should be protested, and in fact, for attempting a power grab as egregious as this one, Gretchen Whitmer must resign.