Editor’s Note: This piece was first published in The Detroit News on June 23, 2022.
Michigan was embroiled in not one, but two emergencies in 2020: the COVID-19 pandemic, and the legal controversy over the governor’s use of executive power. Residents were subjected to legally questionable mandates and rules that were unprecedented, contentious and everchanging.
Gov. Gretchen Whitmer’s power lasted seven months before the Michigan Supreme Court declared it unconstitutional. Nothing better illustrates the need for lawmakers to clean up and clarify Michigan’s emergency power laws.
There are more than 30 statutes in Michigan that give the governor or other state officials the authority to act unilaterally in case of emergency. A package of bills before the Michigan House would amend and improve these laws, safeguarding against their misuse. Rep. Julie Alexander, a Republican from Hanover, is leading the effort.
Most of these bills would make only minor changes to state law. Many of the emergency power statutes already contain sufficient guardrails to constrain the executive’s authority. Well-designed statutes define the exact circumstances that allow for use of this power. They list the actions state officials may take and impose procedural requirements that must be followed. They also set an automatic expiration date to this unilateral control.
A Michigan law from 1982 is an example of one such well-crafted statute. It grants the governor unilateral authority in case of an energy emergency, carefully defined as “an impending or present energy shortage.” It lists the actions the governor may and may not take during the emergency and limits these to 90 days. The governor’s control is not entirely unchecked, as the statute allows the Legislature to terminate the emergency at any time with a majority vote.
Other emergency power statutes are much less clear. One gives the state health director unilateral powers when faced with a “menace to the public health.” That term is not defined in law, however, so when this power may be used is left to the discretion of a bureaucrat.
A different law gives the health director the ability to force people to vacate a building “for any cause.” While this order cannot last more than 10 days, the opportunity for misuse is real. The bill package in front of the Michigan House would add guardrails to statutes like these.
Some of the emergency powers laws on Michigan’s books are antiquated, while others are simply unnecessary. A few statutes come from the Great Depression era and give state departments powers that are likely incompatible with modern financial practice and law. A handful of other laws are duplicative, granting emergency powers to departments that they already have through different statutes. Unnecessary laws like these would be repealed by the package of bills being considered by the Legislature.
Some will undoubtedly view these reforms as just more partisan politics. It’s true that Whitmer and the Republican-controlled Legislature fervently disagreed about her use of emergency powers. They were at loggerheads over much of the state’s active response to COVID-19, in fact. And all but one of these bills is sponsored by a Republican.
But properly constraining executive powers and preserving those of the Legislature need not have a political bent. Even the purest partisan should recognize that a time will come when their rivals possess these powers. This reality should lead both parties to support properly constraining emergency powers.
A good way of determining what limits might be necessary is to imagine these powers in the hands of a political opponent, say, Donald Trump or Joe Biden. The importance of clearly defined guardrails suddenly becomes obvious.
Emergency powers seemed of little importance until COVID-19 arrived. Governors rarely used them, and when they did, it was typically in a limited and localized manner. Whitmer’s use of them in 2020 made clear the need to improve Michigan law. The state would be better able to handle an emergency if it can avoid legal controversy and uncertainty.
Granting the executive branch extraordinary powers to act quickly is necessary and helpful in emergency situations. But this must be done carefully, as these powers present a threat to fundamental principles of American governance: the rule of law, separation of powers and democratic accountability, for instance.
The reform bills recently introduced in the Legislature would bring consistency and clarity to Michigan’s numerous emergency laws — a significant step toward protecting the public from their potential abuse.
Permission to reprint this blog post in whole or in part is hereby granted, provided that the author (or authors) and the Mackinac Center for Public Policy are properly cited.
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