The last of the Big Three emergency powers are known as epidemic orders and were used extensively during the first two years of the COVID-19 pandemic. Gov. Whitmer pivoted to using these powers after the Michigan Supreme Court ruled her use of both the EPGA and the EMA unconstitutional. These statewide powers had likely never been used before 2020.[*]
These epidemic orders are part of state law known as the Public Health Code, a massive section of the law that regulates most medical services and products, as well as other health-related issues. These orders empower the director of the state health department to “prohibit the gathering of people for any purpose” and “establish procedures … to insure continuation of essential public health services and enforcement of public health laws.”[†]
There is little else to this statue, and as such, it provides few, if any, guidelines for how this power may be exercised properly. Its scope of authority is far too vague. For example, what constitutes a “gathering”? What actions could qualify as “procedures” to protect public health? What are the “essential public health services” that need to be preserved? Answers to these fundamental questions are left entirely to the discretion of the department.
The statute also lacks a durational limit on how long epidemic orders may last. This means the health director’s unilateral authority could theoretically last indefinitely. In fact, many of the orders issued through this statute in 2020 and 2021 contained no expiration date.[65] Several epidemic orders are still in effect in Michigan of this writing, more than two and a half years after the onset of the COVID-19 pandemic.[66]
Gov. Whitmer’s administration used epidemic orders in broad fashion. The first order, issued on March 23, 2020, appeared to establish procedures to protect health care capacity. It required hospitals to report COVID-19 incidences, bed capacity, personal protective equipment inventory, staffing shortages and more. It also required testing facilities to prioritize COVID-19 tests. It had no expiration date.[67]
The second order, issued April 2, 2020, did not prohibit gatherings or establish any procedures. Instead, it declared that three executive orders Gov. Whitmer had issued under the EPGA and EMA were necessary to protect public health. It further stated that every person in Michigan must comply with them or risk criminal penalties. The order authorized local health departments, sheriffs, chiefs of police, county prosecutors and other local law enforcement entities to investigate potential violations and enforce the governor’s executive orders. It had no expiration date.[68]
The governor’s executive orders did prohibit some types of gatherings, so perhaps this could be construed to fall within the statute’s authority. But the executive orders included many other mandates that do not appear within the health department’s power to regulate, such as what constitutes critical infrastructure, how certain businesses could operate and what goods people could purchase.[69]
In addition to this questionable application, the April 2 order also required every Michigan resident to comply with the executive orders’ “accompanying frequently asked questions that may be updated from time to time.”[70] There were several hundred FAQs already, and within the coming months, the state added hundreds more, bringing the eventual total to more than 1,000.[71] It is not clear how these FAQs were produced, or by whom. But they appeared to be created and updated on an ad hoc basis, without following any legally established method or statutorily authorized process.
In other words, the state health department appears to have used epidemic orders to require every person in Michigan to comply with, under penalty of law, mandates created arbitrarily, simply posted online by a state employee or bureaucrat. Nothing in statute permits a department to issue legal orders by way of periodic postings to a state website. Subsequent epidemic orders dropped references to these FAQs.[72]
Later epidemic orders, issued after the governor’s executive orders were ruled unconstitutional, were expansive in other ways. These orders defined gatherings as “any occurrence where persons from multiple households are present in a shared space in a group of two or more.”[73] This allowed the department to regulate nearly all social interactions.
The orders were used to limit the number of people who could enter certain venues, such as retail stores, libraries, museums, public pools, fitness centers, bowling alleys, roller rinks, ice rinks and trampoline parks.[74] At times, “gatherings” in certain places were prohibited entirely, such as at high schools, casinos and restaurants.[75] This forced thousands of businesses to close. The statute does not authorize the department to shutter businesses, but by defining every social interaction as a “gathering,” it effectively granted itself this power.
The orders also established rules for some gatherings. For example, “gatherings for the purpose of sports practice and competition involving persons age 13 to 19” were for a time only permitted if the participants tested for COVID-19 on a weekly basis.[76] People could only “share space” at barber shops, hair salons, massage parlors and exercise facilities if those businesses recorded the name, phone number and time of entry of every visitor.[77]
Rules on gatherings restricted what people could do on their own private property, such as hosting people in their own homes. The orders stated, “All persons participating in gatherings are required to wear a face mask.”[78] This meant that anyone sharing space with someone from a different household, even in their own home, was required by law to wear a mask. The rule was impossible to enforce, of course, but criminal penalties awaited violators of this provision.
The state issued nearly 50 epidemic orders, averaging a new one each week, from late March 2020 to June 2021.[79] In addition to the sweeping rules on gatherings, other orders appear aimed at protecting public health services. The connection between the regulated activity and health care capacity was not always obvious. For example, some orders addressed housing for the homeless, visitation rules at juvenile detention centers, and testing and reporting requirements at prisons, adult foster care homes and certain agricultural businesses. Orders related to the handling and reporting of the dead, the licensing requirements of morticians, and visitation protocol and limits at hospitals had a stronger link to health care services.[80]
The department often issued new epidemic orders to rescind previous ones. This was necessary because many orders did not include an expiration date. The most significant recision was issued June 17, 2021. It canceled most of the previous epidemic orders in one fell swoop.[81]
[*] This conclusion is based on a search of past editions of digitized newspapers made available online by Newspapers.com for stories about previous epidemic threats in Michigan, including those in 1918, 1957 and 1968. The search did not find any mention of statewide epidemic orders like those used for COVID-19 under the authority of the state health department.
[†] MCL § 333.2253(1). The statute also declares that “emergency procedures shall not be limited to this code.” Presumably, this means that other emergency actions may be taken in coordination with these powers, perhaps authorized by the EMA or other emergency powers laws.