State agencies and others took drastic measures to combat the COVID-19 pandemic. The Mackinac Center Legal Foundation fought to make certain that civil liberties were not destroyed in the process.
Gov. Gretchen Whitmer’s executive orders came fast and furious — more than one a day. A state government webpage dedicated to frequently asked questions about the orders was updated even more frequently. Where we could go, whom we could see, where we could shop, whether we could leave our houses: These questions were all decided by the governor on an ad hoc basis and with almost no input from the legislative branch. Want to paddle in a kayak? Fine. Want to go fishing in a motorboat? That’s banned.
Not surprisingly, many of Michigan’s 10 million residents chafed under these commands. The executive orders were enforced through the threat of misdemeanor charges that included $500 fines and up to 90 days in jail. Some sheriffs thought these punishments too draconian and refused to enforce them. At this point the governor unilaterally sought to enhance the punishments. She decreed that any violation of her orders would violate the state’s Occupational Safety and Health Act. This opened the door to enforcement by state bureaucrats rather than local police while elevating the charge to a felony punishable by up to three years in prison and fines as high as $70,000.
The Mackinac Center then scored its first legal victory over COVID-era governance. On June 4, 2020, the Michigan Court of Claims held that these enhanced penalties were illegal and could not be enforced.
The second Mackinac Center legal victory went to the executive orders themselves. On Oct. 2, 2020, the Michigan Supreme Court held that the governor’s process for creating executive orders was unconstitutional. Whitmer was forced to go back to the drawing board. The governor used the health code to enact many similar orders, but some of the most obnoxious ones — including the ability to control the state’s economy unilaterally until she felt the economic effects of COVID had dissipated — fell by the wayside. Michigan, through the hard work of the Mackinac Center, was one of two states to defeat COVID orders through legal action.
COVID was a stress test of our institutions, including the political system, the press, hospitals and the courts. As we look back five years, we see some overreach and failures. We were proud to have been fighting those in real time and will remain vigilant in case the need arises again.
