The Gongwer Blog

Might An Obscure Provision Of The Constitution Become Necessary?

By Zachary Gorchow
Executive Editor and Publisher
Posted: April 1, 2020 2:31 PM

"The governor may convene the Legislature at some other place when the seat of government becomes dangerous from any cause" – Article V, Section 16 of the Michigan Constitution.

The 1961-62 Constitutional Convention slightly refined this portion of the Constitution from its original text in the 1908 Constitution. In 1908, the idea was clearly disease (the 1908 text included that word) or some other danger, probably invasion (the Civil War had ended only 43 years earlier). By the time voters approved the 1963 Constitution, the section had wartime echoes with the Cuban Missile Crisis having just happened.

Here we are in 2020, mired in the worst pandemic since 1918. One legislator, Rep. Isaac Robinson (D-Detroit) has tragically died, likely of COVID-19, and another, Rep. Tyrone Carter (D-Detroit) is battling the infection (by his account last week, he is feeling better).

While Governor Gretchen Whitmer's stay-at-home order runs through April 13, based on the skyrocketing trajectory of cases in Michigan, it's difficult to imagine the end of that order any earlier than May 1, and that feels wildly optimistic. No one wants to see the order lifted only for the disease to start spreading again and more people become sick and die. It could be June 1 or later, who knows?

What we do know is that the Legislature, or at least parts of it, will need to meet at some point this spring and take some actions to deal with the crisis and its ramifications.

There is a lot the governor can do unilaterally under a state of emergency, but there are some actions where she will need legislative approval. The most obvious of these is the budget.

Tax revenues are plummeting, and there's no way they can support the appropriations Ms. Whitmer and the Legislature agreed to for the 2019-20 fiscal year. Under the Constitution, when that happens, Ms. Whitmer must reduce spending to match revenues. That's done through an executive order, and under the Constitution, the House and Senate Appropriations committees have to concur in those reductions for them to take effect.

One has to think such an order is coming sometime in the next four to six weeks.

The Legislature may need to meet to approve other measures, like changes to address the closure of schools through April 13 and whatever Ms. Whitmer decides to do about the rest of the school year.

So how best to do that and protect legislators and staff?

Bringing in both houses of the Legislature with no changes other than extra cleaning of surfaces seems a bad idea, completely at odds with the social distancing recommendations of six feet and staying at home if at all possible.

One possibility could be to do what the Ohio Legislature did last week when it held session to vote on funding to fight the coronavirus.

In the Senate, rules were waived on attire and having to vote from the floor so that members could practice social distancing. Provisions were also made so they could vote from a separate room if requested. In the House, members were placed in small groups and brought onto the floor to cast their votes one group at a time to keep members apart. There's inherent risk though in bringing together a large number of people in the Capitol, no matter all the precautions taken.

Or perhaps this could all be done electronically. That's where the provision in the Constitution allowing the governor to convene the Legislature elsewhere could come into play. It would take a major effort, but the technology is there to meet remotely, whether that is just the Appropriations committees or the entire Legislature. There would have to be provisions with the committees to enable public comment and such meetings would have to be webcast for the public.

To be clear, I haven't heard anyone in a decision-making position raise either of these as a possibility. Spokespersons for the House and Senate at this point are saying only that many scenarios and precautions are being explored.

Extraordinary times, however, call for extraordinary measures, and a few smart legal types in Lansing have noted to me the existence of this section enabling the Legislature to meet somewhere else and the plausible reasons for invoking it.

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