It’s been five years since Gov. Gretchen Whitmer granted herself unilateral control over the state’s response to the COVID-19 emergency. She issued one of the most draconian lockdowns in the country. These policies were unprecedented and experimental, but to date, state officials have shown no interest in studying their consequences. They could do it all over again with a stroke of a pen.
While the Mackinac Center Legal Foundation’s successful lawsuit against the Whitmer administration in 2020 ended the governor’s unlimited emergency powers, the state health director retains similar powers. Any time — tomorrow or maybe next month — the health director could order a statewide lockdown with the stroke of a pen. As the governor’s appointed official, a director would presumably only do this at the governor’s command. As the law is written, all it would require is for the director to announce that the “control of an epidemic is necessary to protect public health.”
That’s all the proof the law demands. There are no checks and balances on the health director. The law imposes no expiration date for these powers. The director gets to exercise unilateral control for however long he or she wants. Someone could launch a legal challenge, but courts have traditionally shied away from overruling public health officials in declared emergencies. It could take months before they hear such a case.
The law empowering the health director is similar to the emergency power law the Michigan Supreme Court ruled unconstitutional in 2020. Lawsuits against it have failed in court, however. The Legislature modified this statute in 2023, adding limits on how long the director could restrict families from visiting their loved ones in nursing homes and other health care facilities. That’s an important reform. But courts could read this modification as an implicit affirmation of the extraordinary pandemic powers that remain in the statute.
It’s hard to know whether the director would issue a lockdown, though the state published a new pandemic plan last year. The plan claims to incorporate lessons learned from the state’s COVID-19 response, but it does not name any specific ones. It does name several lockdown-style policies that officials should consider. These include closing churches and schools, prohibiting families from gathering in their own homes, dividing all of society into “essential” and “nonessential” activities and even restricting access to medical care. All the most controversial and legally questionable policies Michiganders endured during the COVID lockdown are represented here.
But the plan is careful not to commit state officials to any particular course of action. The text is vague and slippery enough that it effectively leaves all the important policy decisions to the discretion of state health officials in the heat of the moment. While it does not explicitly recommend another lockdown, the plan envisions handing unelected bureaucrats unilateral control over the response. This, of course, is the same approach the Whitmer administration chose — an approach that resulted in one of the nation’s most aggressive and destructive lockdowns.
What can we make of the state’s pandemic plan? The lack of specificity means it fails to provide officials with meaningful guidance. Michigan had various pandemic plans when the COVID-19 emergency began. Whitmer simply tossed them aside and made up her own response on the fly. Will another governor do the same thing with this plan in the next emergency?
There is no sugarcoating lockdowns. They violate the most basic human rights and individual liberties. Lockdowns confined people to their homes under penalty of law. They forced schools, churches, community services and businesses to close for months at a time and prohibited families from gathering, even to grieve and bury their dead. This attempt to reduce the spread of an easily transmissible respiratory virus resulted in ethical violations typically only known during times of war.
It’s been five years since we endured these unprecedented government mandates. Will it happen again? It’s impossible to tell based on the state’s current pandemic plan; everything depends on unelected health officials. The state’s plan for the next pandemic is to hand unilateral control over to governorappointed bureaucrats. This approach created confusion and controversy during the COVID-19 emergency. State officials seem to have learned nothing in the intervening five years.
