Michigan still has 30 emergency powers laws on the books

Reforming these laws and placing guardrails on all emergency powers in Michigan is crucial

Gov. Gretchen Whitmer and other public officials used emergency powers to combat COVID-19 for the first two years of the pandemic. You don’t hear much about the need for unilateral control anymore, despite the disease’s continued prevalence. Yet these emergency powers are still on the books in Michigan and could be easily abused.

Even the governor is oddly silent about the pandemic and her extraordinary response to it. She once promised to “beat the damn virus,” but didn't mention COVID-19 at all in her first re-election ad.

Last July she told reporters that she does “not anticipate another pandemic order, not in the near future and maybe not ever.”

While that’s a promising sign, pandemic orders are only one type of emergency power. Michigan law contains a whole assortment of statutes that permit the governor or unelected bureaucrats to grant themselves the power to issue unilateral decrees. 

A key lesson from the COVID-19 response is that public officials will stretch these emergency powers as far as they can. That’s why reforming these laws and placing guardrails on all emergency powers in Michigan is important. 

To that end, I have identified more than 30 emergency power laws in Michigan. That’s a lot, but the good news is that about half of these cannot easily be abused. They are limited in scope, dealing with localized problems such as dam failures, mining and fire hazards. These powers do not present a threat to civil liberties because they may only be used for narrowly defined purposes.

Some emergency powers are broader in scope but have other built-in protections against abuse. The governor can issue unilateral orders for a looming or actual energy shortage, for example, but they may last for no more than 90 days. The Legislature can also terminate the declared energy emergency at any time.

Other emergency power laws are concerning, however. A handful are antiquated, with several originating from the Great Depression era or earlier. Some empower state departments to close banks and micromanage insurance companies in a financial emergency, for example. These powers have likely never been used. Another handful of laws are simply unnecessary, granting agencies powers that they already have under different statutes.

The most troubling laws grant broad authority to public officials but fail to provide guardrails on use of this power. These laws tend to be poorly written, failing to specify the circumstances under which these extraordinary powers may be used. For instance, one law gives the state health director unilateral power to deal with a “menace to the public health.” But that term is not defined anywhere in statute. In other words, it’s left to an unelected bureaucrat to decide what a menace to public health is and when he or she can exercise extralegal authority.

Many of the problematic laws do not limit how long emergency powers may last. The law that authorizes pandemic orders, for example, is silent on this. Other laws about adulterated products, safe drinking water and “imminent dangers” are similarly void of any durational limit.  

The good news is that the Michigan Legislature is currently considering reforms to these statutes.

Rep. Julie Alexander, R-Hanover, discovered my research last year and led a group of lawmakers to create reforms and repeal antiquated or unnecessary powers. The bills, if passed, would ensure that all emergency powers in Michigan contain at least some guardrails to prevent their abuse, protecting our system of checks and balances and the separation of powers.

It is unclear if Gov. Whitmer will support this legislation, especially considering that the reforms limit the power she exercised to combat the pandemic. But then again, Whitmer has eschewed emergency powers of late, even in face of the state’s deadliest COVID-19 wave last winter.

Regardless, properly limiting these powers is important not just for Gov. Whitmer’s potential second term, but also for all other governors who come after her.

Michael Van Beek is the Mackinac Center for Public Policy's director of research. 

Michigan Capitol Confidential is the news source produced by the Mackinac Center for Public Policy. Michigan Capitol Confidential reports with a free-market news perspective.