President Donald Trump loves attacking Michigan’s Democratic Gov. Gretchen Whitmer, and one of his favorite insults is that she’s alienated her constituents with her aggressive COVID-19 response. “They’re not liking her so much because she’s got everybody locked down,” he said last week on his CBS “60 Minutes” interview.
The reality in Michigan looks rather different.
Whitmer’s stay-at-home orders expired early in the summer and, since then, life has been carrying on as much as it is in any other part of the country. Stores are serving customers, schools are open where districts have approved. Even college football is back on, albeit without the marching bands or spectators in the stands.
As for Whitmer’s standing with the public, approval of her overall job performance in a WDIV/Detroit News poll out this week was 59%, and approval of her COVID-19 response specifically was at 61%. Trump, by contrast, got just 44% for overall job performance rating and 39% on COVID-19. The numbers have been like that for months.
But Whitmer’s ability to keep doing her job is in jeopardy right now, thanks to Republicans who control the heavily gerrymandered state legislature and conservative judges who control the state Supreme Court. On Oct. 2, those judges struck down the law on which Whitmer had relied most heavily for her emergency orders, making it more difficult for her to respond to the pandemic even as as COVID-19 cases are surging again.
This inability to govern despite majority support should sound quite familiar, because it is the underlying story of national politics today ― and the situation Democratic presidential nominee Joe Biden is likely to face in January should he win on Tuesday.
Even if Democrats also take the Senate, Republicans will be able to use the filibuster to block legislation. And with Justice Amy Coney Barrett now on the Supreme Court, a 6-3 conservative majority will be able to undermine whatever Biden manages to get through the congressional gauntlet.
It doesn’t have to be this way, of course. There’s lots of talk about ending the filibuster, finding some way to balance the Supreme Court and taking other steps to break down the barriers to majority rule that have accumulated in the last few decades. But plenty of Democratic officials seem skittish, unconvinced such drastic measures are necessary.
They should take a closer look at what’s been happening in Michigan.
Whitmer’s COVID-19 Response And The Backlash
It’s easy to forget that Whitmer was, if anything, hesitant to act at the very beginning of the COVID-19 crisis. In early March, when cases were popping up in other parts of the country, she declined to issue early restrictions on mass gatherings when Democratic presidential candidates were holding rallies in the state for its presidential primary.
Then Michigan got its first cases and, within weeks, the state was in a full-blown crisis, with Detroit-area hospitals nearly overrun. Whitmer took dramatic action to shut down the state, closing businesses and schools, banning large gatherings and issuing a blanket stay-at-home order.
Cases, hospitalizations and deaths plummeted, as data showed an unusually sharp drop in activity and mobility ― exactly what public health experts said was necessary to deter the spread of the virus. One study, from researchers at the Imperial College of London and Oxford University, suggested the combination of Whitmer’s order and compliance from most Michiganders saved thousands of lives and maybe tens of thousands.
The voters appear to have noticed. Even if they didn’t agree with every decision, they saw her scrambling to get protective gear when the Trump administration didn’t, making it easier for Michiganders to get unemployment benefits and, above all, listening to the scientists. Her approval ratings actually rose from where they had been before the pandemic.
But there were dissenters, and they made a lot of noise. Protesters started showing up in Lansing, many of them taking advantage of open-carry laws, to decry Whitmer’s “tyranny.” In late April, a group entered the capitol building, screaming at guards and potentially spewing the virus, and then took up position in the visitor’s gallery.
Some of those protesters got a visit from Mike Shirkey, who is leader of the state Senate Republicans and was an early critic of Whitmer’s actions. At another rally, in May, Shirkey addressed a group of the self-described “Michigan Militia” and, with a Bible in one hand and a copy of the Constitution in the other.
“One book gives us our rights, assigns them to us, is inalienable,” he said, according to a report in The New Yorker. “The other book is supposed to defend our rights.” And then, pointing toward the crowd, including those holding rifles, he said, “That’s when these groups need to stand up and test that assertion of authority by the government. We need you now more than ever.”
Shirkey was careful after these appearances to say he didn’t support violence, just as he denounced the alleged plot to kidnap and execute Whitmer that the FBI foiled earlier this month. But Shirkey has done his part to stoke the underlying anger.
Back in April, while caseloads were still overwhelming hospitals, Shirkey posted a Facebook message: “OUR Governor IS DESTROYING OUR HEALTH BY KILLING OUR LIVELIHOODS.” A few weeks later, when Whitmer extended her stay-at-home order, he said she was “comfortable being a dictator.”
The arguments got a lot of attention, in part, because they were part of a broader attack from national Republicans, including Trump, who at the time was famously tweeting “LIBERATE MICHIGAN.”
The rhetoric continued through the summer and fall. In early October, Shirkey said it was time for the state to ratchet down its public health measures, even though public health experts were warning that a new, third spike in cases was likely. He also refused to support a mask mandate, another measure that public health officials — and the governor — were advocating.
“We need to now transition from a public health emergency to managing and learning to live with this virus,” he said. “I think we can do that without being under a state of emergency, and that’s my strong, strong feelings.”
Since then Michigan’s COVID-19 numbers have risen dramatically, as they have throughout the Midwest and just as the epidemiologists have been predicting they would. Rather than reconsider his position, Shirkey has adopted the Trump administration’s line: “Nobody should be misled here or of the opinion that you can keep it from spreading,” he said two weeks ago. “I’m also a big believer that there’s an element of herd immunity that needs to take place.”
That statement drew a sharp rebuke from several of the nation’s top public health experts, who in a joint letter warned that a herd immunity strategy could lead to an additional 30,000 deaths in the state.
Michigan As A Minority-Rule State
Shirkey’s positions are widely shared among Republican officials in Lansing, and amplified in friendly media outlets like the Detroit News editorial page. Sometimes they make nuanced arguments about substance and procedure, or question (as some less partisan observers do) whether Whitmer herself could be doing more to improve her relations with the legislature.
Other times, Michigan conservatives traffic in the same extreme language that Shirkey does. Earlier this year, Nolan Finley, the high-profile conservative editor of the News’ editorial page, accused Whitmer of “turning the state into a dictatorship.”
None of which would matter much if the GOP’s power over state government was proportionate to its support within the state. But thanks to partisan gerrymandering, arguably among the nation’s most extreme, Republicans control both houses of the state legislature despite getting 400,000 fewer votes than Democratic state legislative candidates in 2018.
That 2018 election was the same one that put Whitmer in power, part of a resounding Democratic sweep of statewide positions. And as governor, she was able to veto bills the legislature passed to limit her emergency authority.
But Republicans and their allies kept at it. They launched a ballot initiative to take away Whitmer’s emergency powers and filed lawsuits. One of those was the case that ended up winning this month at the state Supreme Court, where conservative, GOP-backed judges currently have a four-to-three majority.
This isn’t politics as usual. This is a massive undemocratic power grab. Susan Demas, Michigan Advance
The most important part of that ruling was the finding, by those four conservative justices, that Whitmer couldn’t rely on Michigan’s 1945 emergency powers law because it was unconstitutional.
It was a breathtaking act of judicial ambition, in part because the justices relied on some fringy, pre-New Deal legal doctrine ― and in part because they issued the ruling even though the particulars of the case would have made it easy (and, in the minds of many legal scholars, more appropriate) to issue no ruling at all.
The Whitmer administration was ready for the outcome. Robert Gordon, director of Michigan’s department of health and human services, issued a set of parallel orders on masks and other public health measures, relying on his own, separate authority for emergencies. But those orders are also subject to legal challenge, potentially putting their fate back in the hands of the state Supreme Court.
How the court might rule is unclear, especially if a case doesn’t get there for a few months. One of the conservative judges is leaving the bench, creating an opening that the voters get to fill on Tuesday. Candidates for the bench are technically non-partisan, but the parties endorse them and, as things stand, Democratic-backed judge Elizabeth Welch has a good shot at taking the seat, flipping the majority.
But that all depends on a fair and open election, which has suddenly become an issue of its own. Whitmer and her allies, including Secretary of State Jocelyn Benson, urged the legislature to pass a bill allowing early counting of absentee ballots. All they got from the legislature was a compromise bill giving local clerks a 10-hour head start on processing, but not counting, the ballots.
More recently, Benson issued an order banning open carry at polling places, citing the possibility of voter intimidation. A group of sheriffs from more rural parts of the state said they would not enforce the order, while conservative state judges have issued decisions blocking it.
Benson is now appealing their decisions to the state Supreme Court and the case is likely to get fast-track treatment, though given recent history, her chances of prevailing would appear to be slim.
The Future Of Majority Rule In Michigan — And The U.S.
The 2020 election is likely to be the last for the GOP’s gerrymandered advantage in Michigan’s legislature, as a successful 2018 ballot initiative puts reapportionment in the hands of a nonpartisan commission. That commission is still organizing and faces some legal attacks of its own, but aims to redraw districts in time for 2022.
COVID-19 will hopefully be long gone by then. But ending the GOP’s artificial lock on the legislature could have dramatic effects on other areas of policymaking. Whitmer ran for office in 2018 on promises to “fix the damn roads” and to increase spending on public education. The legislature has opposed her plans, leaving her to make a significant, but only partial, down payment on her roads plan through executive authority to issue bonds.With a Democratic legislature, her plans would get serious consideration.
It’s that part of the story that should really get the attention of Democrats in Washington. Biden’s policy ambitions include a $2 trillion clean energy investment, nearly another trillion to bolster the Affordable Care Act and get closer to universal health insurance, unprecedented new assistance for child care ― plus, for the short-term, a COVID-19 response that includes a combination of economic relief, widespread testing and reinforcements for the public health system.
Advisers have talked about an “FDR-size” agenda, and that’s not an exaggeration. But it would require FDR-style spending that Republicans in the Senate will oppose and, if they have the filibuster, will be able to block. Other parts of the agenda, including Biden’s pledge to dramatically reduce carbon emissions, would require regulation likely to draw scrutiny from conservatives on the U.S. Supreme Court.
Of particular concern is an attempt to stop Congress from giving executive branch agencies leeway over rules and regulations. Such a move would make effective regulation difficult, maybe impossible.
The antiquated theory behind this argument, which conservative Supreme Court Justice Neil Gorsuch outlined in a dissent to a 2019 ruling in Gundy v. U.S., is called “non-delegation doctrine.” That theory happens to be the basis on which the Michigan Supreme Court struck down Whitmer’s emergency declarations.
“The goal here is pretty obvious,” Nicholas Bagley, a University of Michigan law professor, wrote in The Atlantic. “A revived nondelegation doctrine would give conservatives a useful tool to beat back laws adopted under a Biden administration.”
Bagley went on to warn that Gorsuch had a decent chance of winning over four more conservative justices on this point, especially since Barrett’s presence on the court means he could afford to lose one.
The surest way to fix these kinds of problems is by ending the filibuster and changing the court’s composition some way. The question is whether Democrats have the mettle to do it ― and, more specifically, whether they could get the 50 votes in the Senate they would need. (A simple majority could end the filibuster.)
There are some hopeful signs. Although Biden has talked about his belief that he can win over Republicans, he’s pointedly refused to rule out changes to the filibuster, just as he’s refused to promise that he wouldn’t change the court’s composition.
Meanwhile, even some more moderate and mild-mannered members of the Democratic caucus, like Sens. Chris Coons (D-Del.) and Angus King (I-Maine), have said GOP obstruction in Washington ― up to and including the willingness to jam through Barrett’s nomination right before the election ― may require some kind of reaction.
But even if Democrats win the Senate, they’ll have a thin majority, which means changes to either Senate procedure or the Supreme Court would require the assent of nearly every single member of the caucus. Already, more conservative members like Senators Joe Manchin (D-W.V.) and Kirsten Sinema (D-Ariz.) have said they are reluctant to do so.
They would do well to think about Whitmer, who campaigned and tried to govern as a moderate, and whether her experience with obstreperous but institutionally protected Republicans is really the kind of future they want.