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Legal expert thinks law is on the governor's side

Posted at 7:22 PM, May 06, 2020
and last updated 2020-05-07 05:54:11-04

LANSING, Mich. — One legal expert thinks the Republican leaders will have a hard time convincing the court to side with them.

General Michael McDaniel, dean of WMU Cooley Law, told FOX 47 it all boils down to a disagreement on interpretation of the law between the governor and the state Senate and he doesn't think the court resolution will come quickly.

The Michigan House and Senate are moving forward with a lawsuit against Governor Gretchen Whitmer for extending the state of emergency without their consent.

"They're asserting, in essence, that either she has gone beyond the powers that she has or they're asserting that she has encroached on the legislative powers themselves," McDaniel said.

A 166-page complaint accuses the governor of misusing the emergency powers of the Governor Act of 1945 and the Emergency Management Act of 1976 unconstitutionally.

"I don't think it's a successful argument," McDaniel said. "If you look at those statues themselves, both of them give extremely broad powers to the governor."

For McDaniel, the question of the governor's authority dates back to the intent of the Legislature.

"There is no question that the legislature, through its formal actions in passing this law and enacting this law back in 1945, intended to give the broadest power possible to the governor to react in these types of circumstances."

General McDaniel said the consent of the Legislature component in the Emergency Management Act of 1976 is questionable.

"It does not indicate in that act that that is the only avenue forward for the governor. It doesn't not say nor should it be read to say that once the governor declares an emergency under the 1976 act, that that is her only path forward," he said.

He also doesn't think the court resolution will be a speedy process.

"I think you may have a decision in a short period of time in the court of claims but that's not the end of it. In a matter of this magnitude, I would expect it would be held in the bands until it goes up to the Supreme Court."

The lawsuit has been assigned to Judge Cynthia Stephens. She was first appointed to the bench by former Democratic Governor Jennifer Granholm.

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