Scattered throughout Michigan law are another handful of emergency powers that grant state officials the authority to act unilaterally. These powers are narrowly focused, permitting only limited and specific actions that may last for just a short period. Several of these powers reside in the Public Health Code or belong to the state health department.
A section of law regulating dry cleaners allows the state environmental department to issue an emergency order without the need to give notice or hold a hearing immediately.[*] This is permitted when the department determines “an emergency exists requiring immediate action to protect occupational or public health and safety.”[132] The order would presumably apply only to a single dry cleaner, as the statute refers to the “person whom the order is directed.”[133] That person may request a hearing, which the department must provide within 15 days. Such an order does not automatically expire, but it must be continued, modified or revoked within 30 days of the hearing.[134]
Another section of the state’s health law empowers the environmental department to act unilaterally to control radiation in a specific instance. The scope of authority is very narrow, only permitting the department to withdraw the authorized use of a radiation machine for mammography.[135] This is triggered if the department determines the machine “seriously affects the health, safety, and welfare of individuals.”[136] The department must hold a hearing within five days of issuing the order and must first inspect the machine before reauthorizing its use.[137]
The Public Health Code enables the health department to invoke emergency powers to limit the movement of and detain individuals it believes have a “substantial likelihood” to spread a “serious communicable disease.”[138] In these situations, the department may issue the individual(s) a warning notice, requiring them to do what the department believes is necessary to prevent infections. These warnings may require the individual(s) to participate in education, counseling, medical tests or treatment programs.[139] The statute restricts these notices to named individuals, stating, " A warning notice shall be individual and specific and shall not be issued to a class of persons.”[140]
The statute includes procedural requirements that the department must follow if it wishes to detain individuals or force them to comply with its orders. Specifically, the department first must petition a circuit court to hold a hearing involving the individual.[141] The department must also get permission from the courts to forcibly detain someone. In such cases, a hearing must be held within 72 hours of the beginning of the detainment, and any detention may not be extended for more than five days.[142]
Another emergency power afforded the state health department lets it unilaterally regulate a substance that it determines to be “an imminent danger to the health or lives of individuals in this state.”[143] This statute is part of the Administrative Procedures Act, not the Public Health Code. It enables the department to skip the rulemaking process it normally must follow if it wishes to label a substance a “controlled” one and subject it to regulation. As with other emergency rules enabled by the APA, this labeling of a substance may last up to six months, and the department may renew the emergency labeling for another six months.[144]
Two other emergency powers aim to keep buildings and homes safe. The Housing Law of Michigan, enacted in 1917, allows the state health director to unilaterally order the evacuation of dwellings considered to be “infected with contagious diseases,” “unfit for human habitation,” “dangerous to life or health,” or “for any cause.”[145] While this last cause is a broad trigger, such an emergency evacuation may not last for more than 10 days.[146] The health director may also unilaterally order repairs to a building that is “dangerous or detrimental to life or health.”[147] The statute is silent on how this would be enforced, but like many emergency powers in Michigan, it is unlikely that this one has ever been used.[†]
State law also provides emergency powers to deal with the threat of fire hazards. The state fire marshal possesses this power, but it is very narrow. It may be invoked if the marshal “determines that a fire hazard is imminently dangerous or menacing to human life.”[148] But from there the matter is essentially turned over to the courts. The only thing the fire marshal is authorized to do is ask a circuit court to order the removal or abatement of the fire hazard.[149]
Most of the limited grants of emergency mentioned in this section are rarely, if ever, used. Some could be repealed with no impact on the state government’s ability to protect public health. Because these powers include well-defined triggers, narrow scope of authorities, durational limits or procedural requirements, there is little concern for potential abuse.
[*] These powers once belonged to the state department of health but were transferred to the environmental department in 2017. Gov. Rick Snyder, “Executive Order No. 2017-7” (State of Michigan, Oct. 5, 2017), https://perma.cc/G72W-S5RK.
[†] This conclusion is based on inquiries made to the Michigan Legislative Services Bureau and state departments. Aside from emergency rules issued under the APA and emergency orders made through governors’ executive orders, there are no official state records of other emergency powers being used.