A 76-year-old Michigan law crafted in the wake of Detroit race riots and used more recently to combat a generational health crisis is officially dead.
The Republican-controlled state House voted 60-48 along party lines in support of initiative petition language that repeals the Emergency Powers Act of 1945. The vote came one week after the state Senate also approved the initiative.
Gov. Gretchen Whitmer used the law to issue sweeping health and safety restrictions in the early days of the COVID-19 pandemic, moves that eventually garnered pushback from Republicans and other opponents.
“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,” said Speaker Jason Wentworth, R-Farwell, in a statement.
“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.”
Democrats blasted the initiative effort and opposed repealing the law, arguing the power is needed and lawmakers should allow the petition to go to voters in the form of a ballot question.
Whitmer and her administrative have used other laws to battle health emergencies, but this initiative process outlines a playbook for conservatives to take future action in a way that avoids a veto.
A petition to change law that receives enough signatures (about 8% of the number of votes cast in the last gubernatorial election) goes to the Legislature for possible approval. If lawmakers take no action within 40 days of receiving the petition, it goes to voters in the form of a ballot question. But if the Legislature approves the initiative, then it becomes law in a manner that is not subject to a governor’s veto.
Organizers of the petition drive, a group called Unlock Michigan, heralded Wednesday’s vote and promised additional campaigns.
“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 Gov. Whitmer’s rule by decree,” said Fred Wszolek, a spokesman for the Unlock Michigan petition drive.
“Next we’ll turn our attention to the public health law Whitmer abused to destroy lives, businesses and futures. Don’t bet against our success there either.”
Unlock Michigan is already starting to collect signatures for a new petition, one that would require legislative approval for emergency orders from the health department that last longer than 28 days. Whitmer has vetoed GOP legislative efforts to enact this change, arguing health officials need to act quickly in the face of massive threats.
Opponents of the 1945 law argued it gave Whitmer too much power to act without legislative input or oversight, resulting in business closures and rules they considered restrictive and without scientific basis. Lawmakers unsuccessfully tried to repeal the law multiple times, only for Whitmer to veto their efforts.
“This proposal today is democracy in action The people decided that they have had enough,” said Rep. Matt Hall, R-Emmett Township.
“Repealing this emergency law tells the people of Michigan that they have been heard. And our action today reestablishes needed balance between the executive and legislative branches during an emergency, something that has been so desperate missing during this pandemic.”
Whitmer and supporters said the Legislature gave this power to the executive, the pandemic necessitated quick and broad action and nothing prevented lawmakers from proposing their own plan to combat the coronavirus.
“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,” said Mark Fisk, a spokesman for Keep Michigan Safe, an organization created to keep the emergency powers law on the books.
“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, Legionnaire’s, tuberculosis and anthrax.”
Initially Whitmer pointed to data indicating COVID-19 trends generally improved when more stringent rules were in place. But after almost a year of the pandemic, Whitmer and new Department of Health and Human Services Director Elizabeth Hertel avoided instituting new restrictions in the face of another outbreak this spring.
Michigan became the nation’s worst COVID-19 hot spot, but Whitmer and Hertel championed the need for residents to get vaccinated over sweeping new regulations. After the worst of the outbreak subsided, the state rolled back most of pandemic rules in June.
The petition process itself garnered substantial attention. A Free Press report on a secretly recorded video showed petition organizers coaching people circulating the petition on lying, illegally getting signatures without witnessing them and potentially lying under oath.
Michigan Attorney General Dana Nessel investigated the petition process. While she said organizers used “sleazy tactics,” her inquiry did not result in any criminal charges. But the process prompted legislative Democrats to propose changing laws that govern the petition process.
The Emergency Powers law arose as a bipartisan response to riots in Detroit in 1943, according to the Library of Michigan. The fighting — in which 25 of 34 deaths were Black residents, most of whom were killed by law enforcement — prompted a Republican and Democratic senator to propose giving the governor sweeping powers in the time of a crisis.
“The bill would permit the governor to declare a state of emergency, to designate the area in which the emergency existed, to take control and to command police, state troops and other groups sent into the area,” reads an April 1945 blurb printed in the Detroit Free Press.
Seventy-five years later, Whitmer used the law to implement widespread business closures, gathering restrictions and other safety rules. She justified the action by noting experts advice that indicated COVID-19 spread through social interaction.
“This is not change forever, but we’ve got to be serious about how we act in this moment so we can look back at this as only a chapter,” Whitmer said in the spring of 2020.
While the rules were temporary, they almost immediately garnered pushback. Protesters rallied outside the Capitol in April 2020, before some men carrying long guns entered the statehouse. At least two of those men were later charged by state and federal law enforcement with plotting to kidnap Whitmer, a scheme allegedly tied to her executive actions in relation to the pandemic.
Legal challenges to the 1945 law and another statute brought the question to the Michigan Supreme Court. In a 4-3 ruling issued in October, the court determined the law was an unconstitutional shift of legislative power to the executive.
Critics championed the move, but Whitmer and her administrative quickly relied on public health laws unaffected by the court ruling to institute similar regulations.
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