On October 2, 2020, the Michigan Supreme Court issued its opinion in Midwest Inst of Health, PLLC v Governor of Michigan (In re Certified Questions from the United States Dist Court), No 161492, ___ Mich ___, ___ NW2d ___ (Oct 2, 2020). The court unanimously held that Governor Whitmer did not have the authority under the Emergency Management Act of 1976 (EMA), MCL 30.401 et seq., to declare a “state of emergency” or “state of disaster” based on COVID-19 after April 30, 2020. The court determined that a gubernatorial declaration of a state of emergency under the EMA may only last for 28 days absent legislative approval of an extension. A majority of the court also held that Governor Whitmer does not have the authority to exercise emergency powers under the Emergency Powers of the Governor Act of 1945 (EPGA), MCL 10.31 et seq., because the act unlawfully delegates legislative power to the executive branch and is thus unconstitutional.
On the Monday after the Michigan Supreme Court issued its opinion, the Michigan Department of Health and Human Services (MDHHS) issued an emergency epidemic order under MCL 333.2253, a law “established specifically in response to the Spanish flu.” In a press release, the MDHHS Director noted the importance of public safety measures like masks and distancing. Highlights of the order, which is effective through October 30, 2020, include the following:
- Limitations on attendance at indoor and outdoor gatherings, similar to those in Governor Whitmer’s most recent executive orders.
- Requirements for masks indoors at “businesses, government offices, schools, and other operations,” everywhere except Region 6. Mask are recommended at such places in Region 6.
- A number of exceptions to the face covering requirements in the order, including for individuals who are under five years old, cannot tolerate the covering, are eating or drinking while seated at a food service establishment, are exercising outdoors while distancing, etc.
- Requirements that food service establishments close indoor common areas and “[p]rohibit indoor gatherings anywhere alcoholic beverages are sold for consumption onsite, except for where parties are seated and separated from one another by at least six feet, and do not intermingle.”
- Limitations on organized sports similar to those in Governor Whitmer’s most recent executive orders, including face covering requirements for athletes when “training for, practicing for, or competing in an organized sport” unless they can consistently maintain six feet of social distance or are swimming.
- Provides that local health departments are authorized to carry out and enforce the terms of the order pursuant to MCL 333.2235(1).
In addition to the MDHHS order, a number of municipal health departments have issued their own orders. See, for example, the following:
The situation is changing rapidly, and there is uncertainty around the legal status of Governor Whitmer’s various executive orders. One of the biggest questions is the fate of the temporary expansion of unemployment benefits under Mich Exec Order No 2020-76, which will likely require legislative codification.