Emergency powers enable the executive branch of government to make laws unilaterally, bypassing the statutory and constitutional requirements meant to protect the public from authoritarianism.[*] The Michigan Constitution holds that the state Legislature — the Senate and House of Representatives — is the only institution that may create laws. A grant of emergency power forfeits this lawmaking authority to the executive branch in certain circumstances.
The theory behind emergency powers is that the public could be spared from harm if the government established new laws quickly. The executive branch — the governor and various state departments and agencies — can respond more swiftly to fast-developing threats than the Legislature can. Such threats are, fortunately, rare, and emergency powers are used only occasionally.
The COVID-19 pandemic, however, spurred unprecedented use of this authority. These temporary powers persisted for months, even years. They were pervasive: invoked by multiple state officials and departments and impacting Michiganders’ daily lives. Nothing was outside the reach of COVID-19 emergency rules; virtually all public interactions — and many private ones, too — were regulated by the executive branch.
Gov. Gretchen Whitmer used emergency powers to close businesses and schools and lock down large segments of society. The governor, however, violated the Michigan Constitution in attempting to maintain these powers for too long. This is a clear example of why emergency powers need to be reviewed and reformed.
While governments have mostly ended their use of emergency powers for the COVID-19 pandemic and returned to the normal lawmaking process, they could invoke them again. But the powers given to state officials in case of a pandemic are only one of many grants in state law of unilateral lawmaking authority to the executive branch.
Emergency powers should be treated with caution. They enable a single government official — even an unelected one — to suspend or deny citizens their fundamental rights. Yet, these powers are necessary if voters demand that their government attempt to protect them from certain dangers. This report identifies and analyzes the emergency powers that exist in Michigan law. It explains how to better ensure that these powers serve their purpose and how to reform these laws so that individuals are protected from their potential to be misused.
[*] The Merriam-Webster dictionary’s definition of “authoritarianism” includes this: “of, relating to, or favoring a concentration of power in a leader or an elite not constitutionally responsible to the people.” This concentration of power is a defining characteristic of emergency power laws.