Republican-Led Lawsuit Against Michigan Stay-Home Order Begins

The extent of Governor Gretchen Whitmer’s powers during the COVID-19 pandemic were at issue in the Michigan Court of Claims today. Republicans in the state legislature – upset with the length of her stay-at-home order — say the governor has overstepped her authority.

Click on the player above to hear University of Michigan Law Professor Sam Bagenstos on his analysis of the proceedings.

They are urging Judge Cynthia Stephens to strike down stay-home orders and other restrictions related to the coronavirus. Whitmer maintains that two state laws – one from 1945, the other from 1976 – give her the ability to set rules during public health emergencies.

“The legislature is just not set up to act fast enough to make the changes necessary as facts on the ground change.”

University of Michigan Law Professor Sam Bagenstos believes the law is on the side of Whitmer.

“It seems to me most likely that Judge Stephens is going to say ‘what Governor Whitmer did was an appropriate exercise in her authority under one or the other of these statutes and that this was fully constitutional under the Michigan constitution,” Bagenstos says.

He says there’s a good reason why the legislature passed these laws.

“Having an executive branch official who can exercise these emergency powers – it shows the legislature is just not set up to act fast enough to make the changes necessary as facts on the ground change,” says Bagenstos. “Which is why the legislature passed these laws in the first place to give the Governor this power.”

A ruling by Judge Stephens is expected next week – but regardless of which way she decides it’s likely this will get appealed to the Michigan Supreme Court.