By Zachary Gorchow
Executive Editor and Publisher
Posted: May 1, 2020 4:44 PM

Thursday was an extremely disturbing day at the Capitol.

Some noose-toting lowlife had a sign outside the Capitol that said, "Tyrants get the rope" in a call for the slaying of Governor Gretchen Whitmer via hanging. There was at least one person from the fringe conspiracy group QAnon on the Capitol lawn. Confederate flags were back on the grounds for the second time in a few weeks. If a statue could have thoughts, one can only imagine what the statue of Governor Austin Blair, governor during the Civil War and enshrined in a statue at the entrance to the Capitol grounds as "Michigan's war governor" working tirelessly for the Union, must have been thinking.

There were more comparisons of Ms. Whitmer to Adolf Hitler. This is horrendous though sadly not that unusual to see elected leaders compared to one of the worst people in the history of the human race.

Protesters with no regard for the safety of anyone during the COVID-19 pandemic packed the House lobby shoulder-to-shoulder – social distancing, schmocial distancing – and screamed bloody murder within spitting distance of the faces of Department of State Police troopers guarding the entrance to the House floor. These protesters said they weren't yelling at the State Police, just the House sergeants behind them after three protesters were forcefully removed from the House gallery Wednesday after refusing orders to leave. House sergeants are the "chief police officer of the House."

It would have been fitting when it was all over if the Capitol's janitorial staff came up to the lobby, left the protesters with a bunch of mops and buckets full of bleach and told them to clean the damn place themselves.

The protest outdoors was one thing, what happened inside the building was something else entirely.

Yes, there were plenty of people on the grounds simply voicing their opposition to the stay-at-home order and calling for the governor to reopen the economy. Nothing wrong with that. But those safely exercising their First Amendment rights were drowned out by those that did not.

Now that we've dispensed with what was a truly shameful episode, let's move on to the underlying issue.

There's a big legal fight brewing on the governor's powers to declare an emergency.

Well, maybe, assuming Republican legislators follow through on their threats.

Michigan has two separate statutes that set forth how emergency powers work.

There's the Emergency Management Act of 1976 and the Emergency Powers of the Governor Act of 1945.

The 1976 law sets a 28-day limit on a state of emergency declared by the governor. Extending the emergency requires legislative approval.

The 1945 law puts no clock on an emergency declaration and leaves no role for the Legislature.

The 1976 law, and this is the kicker, also has language in it that says nothing in it should be seen as limiting the powers of the governor to declare an emergency under the 1945 law.

It's a baffling situation, really. Why would a new emergency law be written and enacted 31 years after the first one that puts some clear checks on the governor's powers and yet leave a gaping opening for the governor to preserve those powers? I've asked a few people who worked in state government at the time, and they don't have any recollection of it.

There's another possible loophole in the 1976 law that some legal eagles have identified, and Ms. Whitmer is trying to use. It appears to allow a governor, once the 28 days have expired, to simply declare a new state of emergency regarding the crisis.

Fast forward 44 years, and Ms. Whitmer has made it clear she will use those apparent openings. She reissued an emergency under the 1976 law and reiterated the emergency she already had declared under the 1945 law remains in place after the Legislature declined to grant her a 28-day extension.

An emergency enables Ms. Whitmer to issue executive orders suspending laws and issuing other rules to deal with the crisis like the stay-at-home order.

Republicans are in revolt. They have said it would make no sense for the Legislature of the time to agree to a new act that would only superficially give it a role yet preserve the 1945 law's near unfettered powers for the governor nor for the new law to let the governor declare new emergencies in perpetuity as an end-run around the Legislature.

And yet the 1976 law very clearly states nothing in it should be read as infringing upon the governor's power to proclaim an emergency via the 1945 law. As to the question of why the Legislature in 1976 would have agreed to such deliberate loopholes, well turn it around the other way.

While the 1976 law was being negotiated, then-Governor William Milliken had complete control as governor in an emergency via the 1945 law. Why would he have agreed to dramatically limit the powers of the governor without perhaps keeping the safety valve of the 1945 law?

If Vegas were laying odds on who would prevail in a lawsuit, it would probably be -500 that the Republicans would win (meaning that a $100 bet on the Republicans would yield a $500 win while it would take a $500 bet on Ms. Whitmer just to score a $100 payoff). The Republicans would be the underdog, big-time.

Former Court of Appeals Chief Judge Bill Whitbeck, who worked in the Romney, Milliken and Engler administrations and more recently assisted former Attorney General Bill Schuette, has said if he were still a judge, he would rule for the governor on this question. Court of Claims Chief Judge Christopher Murray, named to the bench by then-Governor John Engler, for whom he was deputy legal counsel, just threw out a lawsuit challenging the governor's authority to issue a stay-at-home order. That's not the same legal question, but it's in the same ballpark and does not bode well for the Republicans.

I would dearly love to hop in a DeLorean, crank it up to 88.8 mph and go back to 1976 and speak with the drafters of the Emergency Management Act and Mr. Milliken's team to better understand why they wrote the law the way they did.