Nearly Six Months Into Michigan Emergency, Lockdown Rationales Keep Changing

Since the beginning of the COVID-19 pandemic, Gov. Gretchen Whitmer has changed the rationales and criteria for imposing and extending the declared state of emergency that gives her unilateral control over Michigan’s response.

Whitmer has gradually broadened the definitions and conditions cited to support the claim in her executive orders that a state of emergency still exists.

The first COVID-19 related executive order was Executive Order-04 of March 10, which said that its restrictions would be “terminated when emergency conditions no longer exist and appropriate programs have been implemented to recover from any effects of the emergency conditions.”

EO-05 closed schools and prohibited large gatherings. The order said this was to “mitigate the spread of COVID-19 and to provide essential protections to vulnerable Michiganders and this state’s health care system and other critical infrastructure.”

This same language was used in the next several executive orders, which closed restaurants and barbershops, prohibited “non-essential” medical care and limited social gatherings to 50 people.

New conditions on social and economic life were added to the stay-at-home order issued on March 23. The rationale: “To suppress the spread of COVID-19, to prevent the state’s health care system from being overwhelmed, to allow time for the production of critical test kits, ventilators, and personal protective equipment, and to avoid needless deaths.”

This rationale appeared in the next series of executive orders, which extended and tightened the stay-at-home order and extended other previous orders.

Until late April, Whitmer had the consent of the Legislature to maintain a state of emergency and issue emergency orders, as required under a 1976 state law. When the Legislature declined to grant further consent, the governor declared she had authority, under a rarely used 1945 law, to continue the state of emergency and issue emergency orders as long as she alone determines it is necessary.

The orders that she issued after this standoff with the legislators greatly expanded her rationale for emergency action.

The rationale for EO-66, issued on April 30, was stated this way: “The health, economic, and social harms of the COVID-19 pandemic thus remain widespread and severe, and they continue to constitute a statewide emergency and disaster. ... Moreover, state disaster and emergency recovery efforts remain necessary not only to support Michiganders in need due to the economic effects of this pandemic, but also to ensure that the prospect of lost income does not impel workers who may be infected to report to work, which would undermine infection control and contribute to further spread of the virus. Statewide coordination of these efforts is crucial to creating a stable path to recovery. Until that recovery is underway, the economic and fiscal harms from this pandemic have been contained, and the threats posed by COVID-19 to life and the public health, safety, and welfare of this state have been neutralized, statewide disaster and emergency conditions will exist.”