Unchecked state authority persists five years after COVID, panel says

Five years after the COVID-19 pandemic began, 30 laws give various government officials unregulated emergency powers, an expert told participants at a May 28 event held by the Mackinac Center for Public Policy.

The Michigan Supreme Court in 2020 declared that Gov. Gretchen Whitmer’s use of emergency powers was unconstitutional. The court ruled that the 1945 Emergency Powers of the Governor Act was unconstitutional. 

But 30 emergency powers laws are still on the books, according to Michael Van Beek, the Mackinac Center’s director of research. Three of those, he said, need to be addressed immediately: the Emergency Management Act of 1976, the Emergency Rules in the Administrative Procedures Act of 1969, and the Public Health Code Act 368 of 1978.

Van Beek has written three reports on emergency power laws in Michigan, including one that the Michigan Supreme Court cited. 

These state statutes authorize emergency authority for a state official to act unilaterally.

“One of the things I’m trying to do is fix our emergency power laws now so that when the next emergency hits, we have our house in order and we can respond to the pandemic in a much more organized and logical way,” Van Beek said.

The epidemic power provisions of the public health code are extraordinarily broad and could be used if the director determines that the control of an epidemic is necessary to protect public health. 

“When all these terms are undefined, whoever is in charge of the state health department gets to determine what these things mean,” Van Beek added. 

“We need a plan that maps out exactly what health officials can and what they cannot do for a pandemic response,” Van Beek said. “All of these statutes need to have limits put into them about how long they can last, what actions specifically can be take, and who can take them.”

A separation of powers is essential in maintaining our liberties, said Daniel Dew, the director of legal policy at the Pacific Legal Foundation. 

 “Without the constitutional separation of powers, the Bill of Rights is not worth the paper it’s written on,” Dew said. “It doesn't matter when all the power is consumed by one person or one group, and we saw that during the pandemic.”

The plan should gather input from the Legislature, public health experts, and local health officials. This would reduce the burden on the governor to act alone and help preserve checks and balances, Dew said.

Jarrett Skorup, the Mackinac Center’s director of Marketing and Communications, concluded the event by calling on all three branches of government to act. 

“The courts need to rein in and get back to our constitutional mandate situation, the legislature needs to bring back some of their power, and we need some principled thinking governors willing to sign these bills,” Skorup said.