Michigan Governor Sidesteps Legislative Process (Again) with New COVID Restrictions

Michigan Governor Sidesteps Legislative Process (Again) with New COVID Restrictions

This article is authored by Mitch Nemeth

Michigan Governor Gretchen Whitmer will continue to enforce COVID-19 orders despite a ruling declaring some of her previous executive orders unconstitutional. Last week, the Michigan Supreme Court held that the executive orders issued by Whitmer in response to COVID-19 “now lack any basis under Michigan law.” In fact, the state supreme court held that the Emergency Powers of the Governor Act of 1945 is “an unlawful delegation of legislative power to the executive branch…in violation of the Michigan Constitution.” In response, Governor Whitmer claimed that this court decision will lead to uncertainty, disruption, and “greater risk to our economy.”

Conservatives were unsurprised by this majority opinion given the inherent un-democratic nature of centralizing lawmaking authority under the executive. Under Michigan law, the state legislature must approve an extension of the “state of emergency” after 28 days to ensure the governor can continue to enforce it. A majority for the Supreme Court writes that the legislature did not approve an extension of the “state of emergency” declaration beyond April 30th, 2020 and “in the absence of a legislatively authorized extension, we do not believe that the Legislature intended to allow the Governor” to redeclare the “state of emergency.” 

Whitmer Faced More Criticism than Others from the Onset

During the early onset of COVID-19, there was a mostly bipartisan consensus that individuals should abide by “stay-at-home” orders and initial measures to “slow the spread.” After many weeks and the grim reality that this novel coronavirus may not be ever eliminated, some conservatives protested the ongoing edicts, contending that they went too far. Some Michigan residents even expressed their dissatisfaction with their state government by entering the Michigan Capitol while lawmakers were debating further measures. “Anti-lockdown” protesters sought an end to what they characterized as authoritarian measures to “stop the spread” of COVID-19. Instead, they sought a more democratic process, whereby their representatives would discuss the many challenges of imposing draconian lockdown orders. Their concerns centered on economic well-being and job security, food shortages, mental health deterioration, school closures, and other public health concerns being ignored due to a fear of COVID-19.  

Unfortunately for Michigan residents, their state lawmakers will likely be largely shut out of the democratic process once again. Governor Whitmer intends to reinstitute some COVID-19 restrictions and measures, including watered-down mask mandates and gathering limitations. The Michigan Department of Health and Human Services (MDHHS) has issued these measures to “sidestep” the state’s Supreme Court decision from last week. Whitmer reminded her constituents that “many of the responsive measures I have put in place to control the spread of the virus will continue under alternative sources of authority that were not at issue in today’s ruling.” MDHSS Director Robert Gordon cites a Michigan law dating back to the Spanish Flu of 1918; MCL 333.2253 provides that the state health director “may prohibit the gathering of people for any purpose and may establish procedures to be followed during the epidemic to insure continuation of essential public health services.” 

It is likely that local elections will be subject to much more scrutiny during the 2020 election cycle, given how familiar everyday Americans have become with their state and local government officials during this pandemic. If there is one major takeaway from the 50-state effort to contain the pandemic, it is that local officials hold much more power than we previously believed. In the coming election, we must be mindful of the choices before us, especially given the vast bureaucratic reach into our daily lives. 

        

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