The state’s response to the COVID-19 pandemic included an unprecedented use of emergency powers. Gov. Whitmer and her administration retained unilateral authority to regulate the daily activities and interactions of Michigan’s 10 million residents for about 18 months. Emergency powers had never been used this expansively, and, unsurprisingly, their use generated considerable public controversy.
This experience also spurred research that led to this report. Improving the state’s emergency power laws was not a priority, or even a consideration, for policymakers or state legal experts before 2020. In fact, few knew these powers are spread across Michigan law and grant governors and other state officials unilateral, lawmaking authority in a wide range of circumstances.
Emergency powers vary considerably from statute to statute. Some rely on ill-defined or vague terms about when they may be triggered, and they afford state officials broad discretion to grant themselves unilateral authority. Others are tightly controlled, specifying the precise conditions under which they may be used and enumerating the exact actions the executive branch may take. Some contain no durational limit, while others cause these powers to automatically expire after a certain number of days.
Now that these powers are identified, policymakers should consider reforming them. Many of these statutes are legally questionable because they delegate lawmaking authority to the executive branch without putting in place meaningful guardrails. Many lack safeguards to protect individuals from having their basic rights violated by a government official abusing these powers. Others are just poorly worded, creating opportunities for misuse. Still others are redundant or conflict with different state laws.
Effective reforms will need to be tailored specifically to each unique emergency powers law — there are no quick fixes here. Clarifying and improving these laws should make efforts to mitigate future threats more effective and give officials better guidance on how to legally use unilateral authority. Above all, reforms should aim to maintain the Michigan Constitution’s requirement for a separation of powers within government, protecting individuals’ rights and ensuring the rule of law.