Gov. Gretchen Whitmer gives an update on COVID-19 | Gov. Whitmer office photo
When presented with a COVID-19 supplemental plan interlinked with a “political poison pill” from GOP leaders last week, Gov. Gretchen Whitmer didn’t take the bait. She signed certain bills worth about $2.5 billion, while vetoing others laced into the plan that sought to permanently limit her administration’s emergency powers.
In December, then-President Trump signed a COVID relief bill sending $5.6 billion to Michigan. If GOP leaders and Whitmer don’t agree on how to spend the remaining funds by the end of Fiscal Year 2021 — which ends on Sept. 30 — the remainder will revert back to Congress. Budget Director David Massaron asked GOP leaders to meet by Friday and hash out a deal.
And there are likely to be new fights over another $5.6 billion that will be coming Michigan’s way as part of the new COVID aid bill President Joe Biden signed last week.
The reaction from the GOP-controlled Legislature to Whitmer’s vetoes was swift. The Michigan House held four votes last week to attempt to override her actions, which all failed to garner the necessary two-thirds vote.
On Wednesday, House Appropriations Committee Chair Thomas Albert (R-Lowell) wrote a letter to Massaron making it clear that the Whitmer administration must agree to “negotiate” on its COVID-19 epidemic orders if it wants to negotiate with the Legislature on allocating federal relief funds.
On Thursday, the GOP-controlled Senate responded by passing a resolution authorizing Senate Majority Leader Mike Shirkey (R-Clarklake) to sue Whitmer over allegedly breaking state law with her line-item vetoes.
The potential lawsuit would be the second brought by the Republican Legislature against Whitmer in less than a year over her executive powers.
The Legislature also sued Whitmer last year for her use of the Emergency Powers of the Governor Act (EPGA) to issue pandemic orders. The GOP-majority Michigan Supreme Court narrowly ruled in October to overturn the 1945 law. The Michigan Department of Health and Human Services (DHHS) has since been issuing many of the same orders using its constitutional authority.
Neither the House or Senate business offices responded to requests about how much each chamber has spent in taxpayer dollars on the Legislature’s lawsuit to date. The Legislature is not subject to the Freedom of Information Act (FOIA) to compel the body to disclose the information.
Democrats tried to get an amendment added limiting the Senate to only spending $10,000 on the new lawsuit, but failed.
“Yesterday, #mileg Republican voted to spend taxpayer money on another political lawsuit against the Governor. They refuse to negotiate w/ @GovWhitmer and they refuse to release billions of $$$ meant for Michigan. But they will waste your money on lawyers while you wait for help,” Sen. Jeff Irwin (D-Ann Arbor) tweeted.
Senate Resolution 26, introduced by Appropriations Committee Chair Jim Stamas (R-Midland), states that “the power to appropriate moneys is solely vested in the Legislature,” and “members of the Michigan Senate must defend the Legislature’s role to appropriate moneys and as a co-equal branch of government in Michigan’s constitutional system.”
The crux of Republicans’ argument for suing the governor stems from conditions they wrote into House Bill 4047 and House Bill 4048, now known as Public Act (PA) 2 and 3. Whitmer signed both on Tuesday.
Whitmer also vetoed House Bill 4049 and is expected to veto Senate Bill 1. The appropriation of certain funds within HBs 4047 and 4048 were meant to only be available upon the enactment of HB 4049 and SB 1 — bills which would have banned DHHS from closing schools during a pandemic and would have revoked DHHS’ powers to extend epidemic orders beyond 28 days without legislative approval, respectively.
In a letter explaining her veto of HB 4049, Whitmer called the bill “a reckless idea, poorly executed and poorly timed.” The measure was also opposed by the Michigan Association for Local Public Health.
SB 1 arrived at Whitmer’s desk on Thursday and she hasn’t yet taken action. She has 14 days — until March 25 — to sign or veto the bill.
Republicans are now criticizing Whitmer for potentially breaking the law and even violating the Michigan Constitution for appropriating funds that were only meant to be available after she honored the tie-bars and relinquished those emergency powers.
“What the Legislature is trying to do here is they’re trying to leverage their budget power to try to force the governor to make substantive legal changes,” said attorney and former Michigan Democratic Party Chair Mark Brewer.
An inquiry to Shirkey’s office requesting comment on the legal issues for the potential lawsuit, as well as when the Senate plans to file suit, was not returned. House Speaker Jason Wentworth’s (R-Clare) office did not immediately respond to whether the GOP-controlled House also plans to join any lawsuit that Shirkey files.
Whitmer’s office also did not respond to a request for comment on the potential suit.
Brewer and other legal experts questioned whether the suit will hold up in court. The first issue is that the Legislature may not even have standing to sue in the first place.
“I sort of view it as, in many ways, a legal equivalent to challenging the governor to a fistfight on the Capitol lawn,” said attorney Steve Liedel, former counsel to Gov. Jennifer Granholm, in reference to a comment made by Shirkey about Whitmer during a secretly taped meeting with local Republican Party officials last month.
On top of that, the “political question doctrine says there are just some disputes between the executive branch and legislative branch that the courts just don’t resolve. And this may be one of them,” Brewer said.
The courts also cannot tell the governor how to do their job, due to separation of powers issues, Liedel said.
There’s another big underlying issue. The GOP bills are essentially trying to pass permanent, significant changes to the executive branch and public health policy as part of appropriations bills.
“It’s very strange, because budget bills by their nature only last a year. They’re only for one budget, and then they’re done. So how do you use a bill that by its very nature is temporary to make permanent public policy changes?” Brewer said.
Tie bars are also usually put at the end of bills; in this instance, the tie bars are buried in the text of the bill. Brewer also said there’s an issue of germaneness.
As a rule, all legislation is held to a standard of germaneness, meaning that the contents or add-ons to bills must be related to the original bill and its intent. Requiring bills to be germane essentially prevents lawmakers from planting irrelevant legislation into unrelated bills as a way to clandestinely get them passed.
“When you put something in a bill, it’s got to be all germane to the topic of the bill. How is making changes in the public health code germane to an appropriations bill? They are completely unrelated,” Brewer said.
The unusual nature of the tie bars could also be found to violate the title-object clause of the Michigan Constitution, as the title of the bills do not disclose the tie bars within, which is legally problematic, Leidel said.
“The governor has a solemn obligation to consider the constitutionality of her every act,” Liedel said. “On the flip side of the coin, the Legislature is responsible for enacting bills in a constitutional manner. And there’s a question, under the title-object clause, as to whether or not such a tie bar violates the title-object clause, or the prohibition against amending other statutes by reference, or both. There’s precedent out there that suggests they did [violate both].”
One of the reasons the title-object clause is in place, Liedel said, is to prevent what is known as “log-rolling,” or combining one proposal that couldn’t get passed on its own into another in order to get it passed.
“I think they’ve got an uphill fight on all of those fronts. I think there’s some real severe legal problems here,” Brewer said. “… It’s a big game of chicken with very high stakes.”
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