Public Health Officials Oppose Placing Limits On Their Power

At least one public health administrator and a group that represents others are opposing an initiated-law campaign to limit the duration of emergency orders issued by health departments to 28 days, unless they gain the approval of elected officials. The measure would apply to both local health departments and the Michigan Department of Health and Human Services.

Ingham County Chief Health Officer Linda Vail says the change “would radically shift decision-making authority from public health experts to Lansing politicians and political appointees, resulting in needless illness, suffering and death,” according to the Gongwer news service.

Nick Hess, the executive director of the Michigan Association of Local Public Health, said his group opposes the measure. He said, as reported by the MIRS news service, “It requires a public health officer to look at data day after day.” He added, “To ask for permission from an elected body would make it difficult to act quickly to protect the public health.”

The language of the petition campaign, which seeks to place the 28-day limit on emergency orders before the Legislature, garnered the approval of the state Board of State Canvassers. This means that organizers can start collecting signatures at any time. If they collect signatures exceeding 8% of the number of votes cast in the last election for governor, the measure will be placed before the Legislature for an up-or-down vote within 40 session days. If legislators do not act, the measure goes to ballot box for voters to decide. The governor has no say in the initiated-law process.

The Republican-controlled state House and Senate are expected to approve the initiated law if it reaches them.

The Unlock Michigan coalition behind the effort has already used the initiated law process to repeal the 1945 state emergency powers law Gov. Gretchen Whitmer used to impose extended COVID lockdowns without legislative approval. The Senate approved the proposal on July 15 and the House did the same on July 21. At that point, the 1945 law was effectively removed from state statute books, where it had remained despite a Supreme Court ruling that it violated the state constitution’s separation of powers provision.

The Unlock Michigan petition states, “The current act authorizes the director of the Department of Health and Human Services and local health officers to determine that control of an infectious disease outbreak is necessary to protect the public health and issue emergency orders. This proposal would require determinations be in writing and would make an emergency order expire after 28 days unless the state Legislature or local governing body extends it.”

The Michigan Supreme Court ruled in October 2020 that the 1945 Emergency Powers Act which had allowed Whitmer to impose extended emergency orders without legislative approval is unconstitutional. Whitmer sidestepped the ruling by having the state health department issue essentially the same orders under authority granted in a public health law passed in 1978. The emergency orders imposed by the state health department on Oct. 5 remained in effect until June 22, 2021.

Vail has not responded to an email seeking comment.