Michigan lawmakers are aiming to head off the risk that a future state emergency could lead to a repeat of the unconstitutional restrictions Gov. Gretchen Whitmer declared during the COVID-19 pandemic.

A package of 31 bills, drawing on research by the Mackinac Center for Public Policy, would amend or repeal laws that enabled the governor to impose a wide-ranging lockdown that crippled the state’s economy and left Michiganders struggling to understand what they were and were not allowed to do.

Whitmer used the 1945 Emergency Powers of Governor Act to declare what Michigan residents could do under the lockdown. The orders created strange rules. Michigan residents could purchase liquor and lottery tickets from retail stores, but stores could not advertise or sell gardening seeds.

Executive branch and state departments have broad authority to make rules unilaterally during an official emergency. Without time limits or legislative checks and balances in place, residents are at the mercy of a handful of people — many of them unelected officials — who are given latitude to issue rules. Sometimes, those rules make no obvious sense, such as allowing the owner of a boat to use it, but only as long as it doesn’t have a motor.

The emergency powers law and Whitmer’s use of it was ruled unconstitutional by the Michigan Supreme Court on Oct. 2, 2020. Legislators subsequently repealed the law, but its spirit lives on. Michael Van Beek, director of research at the Mackinac Center for Public Policy, uncovered 35 additional statues dealing with emergency powers, which present similar issues of too much power and too little accountability.

Alexander’s legislative package, House bills 6184 - 6214, would curb the abuses by providing time limits, transparency, legislative oversight, and other limits on executive and departmental powers during an emergency.

“Our plan applies lessons learned regarding the use of emergency powers in the last few years,” Alexander said, according to a Republican Party press release. “In Michigan, we’ve all learned from experience that authority without accountability can cause distrust. I crafted this package — a plan for better accountability — because I’ve heard frustrations expressed by people around the state, especially those I represent from Jackson County, who were confused that state agencies could hand down so many orders on their own. My colleagues have heard similar sentiments in their communities.”

When the Michigan Supreme Court ruled that Whitmer could no longer use her emergency powers for more than 28 days without getting the Legislature’s approval, she used administrative departments. The Michigan Department of Health and Human Services was one key agency that used fines and other punishments, including temporarily closing noncomplying businesses, to carry out her rules. The Michigan Occupational Safety and Health Administration was another.

House Bill 6184, introduced by Alexander, would amend the public health code to require the state health department to seek legislators’ approval to continue emergency orders beyond 28 days. The department would also have to describe how its orders, such as prohibiting people from visiting one another, protect public health. Under the legislation, the department must also mention relevant data or statistics when making its rules. This bill only applies to the state health department and not local public health departments.

House Bill 6195, introduced by Rep. Mary Whiteford, R-Casco Township, would amend the statute by adding a 28-day time limit on the department’s response to a menace, after which its director must get permission from the Legislature. The public health code currently reads, “If the director determines that conditions anywhere in this state constitute a menace to the public health, the director may take full charge of the administration of applicable state and local health laws, rules, regulations, and ordinances in addressing that menace.”

There are currently no time limits on actions to address a menace. State law does not define “menace.” A common dictionary definition is “one that represents a threat.”

A law that was passed in 1917 and last updated in 1948 gives health inspectors the power to force people to leave a building for any cause the inspector deems suitable. House Bill 6193, introduced by Rep. Fink, R-Hillsdale, requires a health inspector to certify that the dwelling must be vacated and narrows the allowable reasons for doing so.

“The governor’s unprecedented use of emergency powers in 2020 demonstrated why reforms like the ones proposed in these bills are important,” Van Beek said. “Emergency powers need strict guardrails to prevent their abuse. These bills would create those guardrails and ensure that foundational governing principles, such as the separation of powers and rule of law, are followed, even in times of emergency.”

The House Oversight Committee held a hearing on the package of bills June 17. Rep. Steve Johnson, R-Wayland, chair of the committee, said he expects the committee to vote on the bills the week of June 20.

The state of Michigan will pay $200,000 to the Mackinac Center for Public Policy to cover legal fees incurred in litigation that overturned Gov. Gretchen Whitmer’s COVID-19 emergency orders as illegal. In its 2020 ruling, the court also threw out the state’s 1945 emergency powers law as unconstitutional.

“We were there when Michigan needed us,” said Patrick Wright, vice president of the Mackinac Center Legal Foundation.

As a term of the settlement, the fees will be split evenly between the governor’s office, the attorney general’s office, and the Michigan Department of Health and Human Services, an executive branch agency. The state denies liability, but has agreed to the fees.

In May 2020, just two months into the COVID-19 pandemic, the Mackinac Center Legal Foundation and the Grand Rapids-based law fim Miller Johnson sued to challenge the constitutionality of Whitmer’s emergency powers.

The Mackinac Center represented three medical providers and a patient, Jeffrey Gulick of Owosso, who were denied access to their work and to critical care unless the visit was deemed “essential.”

The state would be the decider of what was essential and what was not. Gulick needed a knee replacement, which was deemed nonessential.

"It was difficult," being one of the few voices to speak against Whitmer's unilateral powers, just two months into the pandemic, Joseph G. Lehman, president of the Mackinac Center, told CapCon. "But that's what the Mackinac Center does, and that's what the Mackinac Center is. The Mackinac Center was created for precisely what it just did: directly confronting an egregious abuse of government power, and restoring the people's voice.

In October 2020, the Michigan Supreme Court ruled unanimously that Whitmer’s extensions of emergency powers beyond April 30, 2020, without legislative approval, was illegal.

And by a 4-3 ruling, the court declared Michigan’s 1945 emergency powers law unconstitutional. With one case, the governor’s emergency powers were severely limited.

Every executive order issued after April 30, 2020, was struck down. In Wayne County alone, this led to the dismissal of 1,700-plus tickets for violations of public health orders, including 1,632 in Detroit.

Lehman added, “For five months, Gov. Whitmer disregarded the law, suppressed civil liberties and controlled the day-to-day activities of 10 million Michigan residents. During this time, the governor’s orders sought to micromanage almost every aspect of our lives.”

“This is one of our highlights of all time, getting in and winning this case,” Wright said.

Lehman agreed.

"If the Mackinac Center closed its doors tomorrow, this could very well be the one thing we would be known for," Lehman said of the emergency powers case.

Wright said that if the 1945 emergency powers law hadn’t been struck down, and the 1976 emergency powers law wasn't violated, Whitmer could have claimed the power to maintain emergency status until the economy had recovered.

Wright cites Whitmer’s Executive Order 2020-67, and 2020-68, which read:

“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."

Which is to say: “Statewide disaster and emergency conditions will exist” until Whitmer declared the economy had recovered sufficiently — as defined by her own office.

“Thus, without our legal victory, Whitmer could have still claimed there was an economic emergency requiring her control,” Wright said.

The Mackinac Center Legal Foundation represents clients free of charge.