Gov. Gretchen Whitmer recently announced a new plan for winding down and eventually lifting some of the state’s most wide-reaching COVID-19 orders. While that’s a promising development, an important question remains: Will the governor also relinquish her unilateral control over all pandemic-related policies?
Gov. Whitmer has not indicated one way or the other, but her “Vacc to Normal” plan suggests that future action could be unilateral. After 70% of residents 16 or older get a first dose of a vaccine, her plan says, the state health department will lift its orders that limit and regulate all public interactions, require face masks and testing of healthy teenagers and much more. But it contains an escape clause: “unless the virus threatens to overwhelm the medical system, or other unanticipated circumstances arise, such as the spread of vaccine-resistant variants.”
The public might rightly assume that Gov. Whitmer intends to return Michigan to the normal, democratic policymaking process when this threshold is reached. The wide availability of vaccines changes the pandemic from an immediate public health problem to one of personal responsibility. Meeting this threshold should mark the end of the need for emergency orders issued unilaterally by the Whitmer administration.
Yet as has been the case throughout this pandemic, the governor’s plan is not specific or detailed. It can be read to suggest that her administration plans to continue its go-it-alone approach for determining future COVID-19 policies. For instance, who will decide if the medical system is overwhelmed, or what constitutes “other unanticipated circumstances?” If the governor plans to make those determinations and issue new orders through the health department, she will have maintained unilateral control. But this type of governance is not going to back to normal; it’s establishing a new normal.
Governors are not supposed to be able to write new laws simply whenever they determine they’re necessary. New laws are supposed to be created by the representatives Michigan voters elected to the state Legislature, working in conjunction with the governor. The COVID-19 pandemic emergency enabled Gov. Whitmer to sidestep the normal lawmaking process since last March.
But, some may ask, what happens if another COVID-19 wave hits and immediate action is needed? There’s a simple answer: Gov. Whitmer can declare an emergency under the Emergency Management Act of 1976, which is meant specifically for pandemics. The governor will have 28 days to unilaterally determine what actions are needed, but then she will need to get legislative approval to continue wielding those extraordinary powers. This mechanism provides for both immediate executive action and keeping voters’ representatives involved in the lawmaking process, as is required by the Michigan Constitution.
The governor’s plan has at least one other shortcoming: It does not mention what is to be done with the permanent rules the Michigan Occupational Safety and Health Administration is in the process of creating. Only the governor can veto these regulations, which means she alone may ultimately determine how businesses are regulated in relation to COVID-19. The proposed regulations will affect virtually every employer and employee in the state. Imposing sweeping rules like these without involving the people’s elected representatives is also not normal.
Gov. Whitmer should announce that after her 70% threshold is met, all COVID-19 policies, except for those issued during a declared emergency under the EMA, will be created through the normal lawmaking process and involve the Legislature. Not only is this constitutionally required, but it may also encourage more people to get vaccinated, which is the governor’s stated objective.
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