Whitmer’s Backup Power: Health Department Epidemic Orders

Michigan Gov. Gretchen Whitmer has issued more than 100 coronavirus-related executive orders over the last five months placing limits on business and social activity.

Some of the harsher restrictions have elicited protests on the streets and pushback in court. They have also been met with a lawsuit, to be heard by the state Supreme Court on Sept. 2, challenging the governor’s authority to unilaterally declare an open-ended public health emergency.

But even if the Whitmer administration loses that challenge and is compelled to seek legislative authorization for continuing restrictions, public health officials may have a backup plan. The plan would be in the form of epidemic orders, issued by the director of the Department of Health and Human Services, calling for prohibitions on various activities.

The department’s director, Robert Gordon, has issued four such orders since April, virtually none of which have attracted public or media attention.

The most recent order was issued June 5. It gives local law enforcement and public health agencies authority to enforce restrictions on what business activity is permitted where and when, and requirements on coronavirus safeguards for employees. The order also limits the number and manner of public gatherings and business activities.

“Every person in this state must comply with these rules, procedures and restrictions,” according to the order.

Michael Van Beek, director of research at the Mackinac Center for Public Policy, said the health director’s epidemic orders mostly duplicate Whitmer’s executive orders and could add to widespread public confusion over complex coronavirus-related restrictions.

But the larger question, Van Beek said, is whether the administration considers them a kind of insurance policy in the event that the governor’s direct emergency powers are curtailed.

The authority to issue epidemic orders comes from a section of the public health code that was added in 1978. The law gives the director of the health department the authority to “prohibit the gathering of people for any purpose” to control an epidemic.

Whitmer’s executive orders, by contrast, have been issued under a pair of statutes that give the governor enhanced authority in the event of emergency.

Van Beek said the epidemic response statute is sweeping and open-ended.

“The law doesn’t appear to place any limit on (the director’s) authority. There may have been limits in the minds of the drafters,” he said, “but the politicians have taken down the guardrails.”

Health department spokeswoman Lynn Sutfin said in response to an email that the administration views the epidemic orders as a means to “bolster the (COVID-19 restrictions) enforcement toolbox by adding civil penalties.”

Whitmer’s executive orders carry misdemeanor penalties for violations, Sutfin said, but the epidemic orders give local authorities the power to levy civil fines and penalties.

The director’s emergency authority is separate and distinct from the governor’s emergency powers, she said.

Asked if Gordon’s order would remain in place if Whitmer’s emergency orders are limited by the court, Sutfin said, “The Director’s June 5 Epidemic Order remains in place pursuant to (the separate statutory authority) until it is rescinded.”