Five years later, Whitmer can unilaterally shut down the state

If Michigan Gov. Gretchen Whitmer wanted to unilaterally impose new restrictions on business and social activity tomorrow, as she did March 10, 2020, she still has the power to do so.

While the Michigan Supreme Court struck down one law Whitmer used to justify her actions, other state laws still grant the governor extensive power, Michael Van Beek, director of research at the Mackinac Center for Public Policy, told Michigan Capitol Confidential.

With just two presumptive cases of COVID-19 detected in the state, Whitmer shut down the schools and businesses through executive order 2020-4.

After the Supreme Court struck down the Emergency Powers of Governor Act of 1945, Whitmer still had the Emergency Management Act of 1976, which grants sole power to the governor in the case of a disaster or threat of disaster. It allows the governor to have unilateral control for 28 days, after which the Legislature would have to grant any extension.

This route is not, however, the only means by which a governor could exert significant control. Whitmer could still issue orders through the Michigan Department of Health and Human Services. The department could order businesses and schools to close. It also could tell residents to wear masks and practice social distancing. The governor appoints the director of the state health department.

Republican lawmakers consulted Van Beek and others as they developed legislation to restrict gubernatorial power, as Michigan Capitol Confidential reported in fall 2022.

The Republican-controlled Legislature passed a package of bills Sept. 28, 2022, which Whitmer, a Democrat, vetoed the next month.

Various state laws contain triggers that grant the governor increased power in certain circumstances, according to Emergency Powers in Michigan Law, a study Van Beek wrote for the Mackinac Center.

“Endanger[s] the public health and safety,” and “potential to harm human health” are just two among many of the broadly worded triggers found in Michigan’s laws.

“If the director (of the state health department) determines that control of an epidemic is necessary to protect the public health,” the director, who is selected by and reports to the governor, assumes new powers.

Even if there are allegations that the health department director overstepped the authority granted, it could take months for the courts to make the determination. This was the case when Whitmer continued to wield her authority while refusing to work with the Legislature to navigate the pandemic.

The Michigan Supreme Court unanimously ruled on Oct. 2, 2020, that the governor’s orders taken after April 30, 2020, without legislative support, were illegal. But the lawsuit was filed May 18, 2020, which means even with a fast-tracked lawsuit, the executive branch had five months of unchecked power.

The emergency power granted under the health code is broad. The law states, “Emergency procedures are not limited to this code.”

Michigan needs a better approach in the next pandemic to providing unemployment benefits to state residents, educating students, and protecting seniors in long-term care facilities, Jamie Thompson, R-Brownstown, minority vice chair of the Health Policy Committee, said in an email to CapCon.

“Without legislative oversight, we wouldn’t have known the true scope of these things and many others, and how decisions impacted our future,” Thompson wrote.

The state’s health department did not respond to an email seeking comment.