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Michigan Supreme Court Rules Emergency Powers Act Used By Democrat Governor Whitmer Must Be Repealed

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OPINION: This article contains commentary which reflects the author's opinion


Michigan Gov. Gretchen Whitmer, more than most governors, really stretched the limits of her power during the coronavirus lockdowns, and now she is learning that her power has limits.

The Michigan Supreme Court ruled this week that the Board of State Canvassers has to certify an initiative to repeal the Emergency Powers of Governor Act, The Detroit Free Press reported.

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That means that once the board acts on the court’s order, the Republican-controlled Legislature can repeal the law with majority votes in each chamber, and Gov. Gretchen Whitmer will be unable to veto the measure.

The order gave no breakdown on what position each justice took on the question, but there was no dissent accompanying the order, suggesting the decision was unanimous…

Whitmer used the 1945 law extensively to issue  emergency orders related to the coronavirus pandemic until Oct. 2, when the Michigan Supreme Court struck down the law as an unconstitutional ceding of legislative power to the executive branch of government.

Although the law is no longer in effect, Democrats want to keep it on the books, apparently in the hope that the Michigan Supreme Court might reverse the October decision. The makeup of the court has shifted since then, from a 4-3 majority for Republican nominees to a 4-3 majority for Democratic nominees.

“The court has it exactly right — the Board of State Canvassers had a clear legal duty to certify what was obvious, that we had collected far more signatures than required,” Unlock Michigan spokesman Fred Wszolek said. Unlock Michigan was the group the sponsored the petition drive.

“We urge the Michigan House and Senate to act promptly to finally strike this awful law from the books forever,” he said.

The Emergency Powers of Governor Act gave Gov. Whitmer near dictator like powers and used them in that way. But predictably, Democrats are furious about the decision of the court.

“The Michigan Supreme Court has opened the floodgates for illegal conduct including forgeries, leaving petitions unattended, circulators lying about their activities, and more if this decision stands,” Keep Michigan Safe attorney Mark Brewer said.

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“Rather than allowing the board to investigate and holding petition gathering efforts accountable, this decision will unleash rampant illegalities and criminal misconduct in future ballot initiatives and embolden even more brazen illegal actions in the years ahead,” he said.

But Wszolek argued that Whitmer used the 1945 law “recklessly to crush businesses, families and lives,” and “no governor should be able to do so ever again.”

It has been a tough stretch for Whitmer who, at the end of May, lost another court fight where it was decided that a recall petition against her could proceed.

Judges Kathleen Jansen and Michael Gadola of the Michigan Court of Appeals decided that the Board of State Canvassers “correctly” approved the six recall petitions against Whitmer and one against Lt. Gov. Garlin Gilchrist, The Washington Examiner reported.

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The governor argued these cases did not “adequately describe the authorities cited as reasons for the recall,” and the governor plans to appeal the decision campaign spokesperson Mark Fisk said.

“We plan to appeal this disappointing decision, and we fully intend to beat back these irresponsible partisan attacks against the governor in the courts, on the streets, or at the ballot. This is part of a massive and coordinated attack by Republicans trying to make the governor fail, and our campaign will strenuously oppose these efforts so the governor can keep saving lives, reopening our economy and creating jobs,” he said.

The Michigan Democrat has attracted controversy in recent months after the governor and several members of her administration were caught appearing to violate COVID-19 protocols.

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Last weekend, Whitmer was spotted at the Landshark Bar & Grill in East Lansing when a photograph emerged showing the governor and several others, who were not wearing masks, with their tables pushed close together. The arrangement violated the state’s Department of Health and Human Services May 15 order mandating that all parties be separated by 6 feet.

After Whitmer apologized for the incident, the state rescinded the rule, and the health officer for Ingham County told the Washington Examiner that the bar wouldn’t be cited or fined.

Reports indicated that multiple aides to the governor, including Elizabeth Hertel, the director of Michigan’s Department of Health and Human Services, and Tricia Foster, the governor’s chief operating officer, traveled out of state last month despite April 5 guidelines issued by Hertel warning would-be travelers that “travel increases your chance of spreading and getting COVID-19.”

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