In 2007, the Michigan Department of Community Health participated in a program run by the U.S. Centers for Disease Control and Prevention, called the Social Distancing Law Project. The endeavor was to “assist selected states with assessing their legal preparedness to implement social distancing measures in … public health emergencies.” As a result, a group of legal experts, from the state health department and Michigan Department of Attorney General, produced a report that “provides an assessment of Michigan’s legal readiness to address pandemic influenza.”

Although 13 years old, this report is perhaps more relevant now than ever. Not only are we in the middle of a pandemic, but the Michigan Supreme Court is considering a legal challenge to Gov. Gretchen Whitmer’s use of executive powers to respond to COVID-19. Specifically, the court is determining whether a rarely used law from 1945 — the Emergency Powers of Governor Act — is a legitimate source of power for the governor to issue orders that have the force of law during a pandemic.

The analysis this report offers does not appear to support the governor’s use of the EPGA. The report makes clear that the Michigan Emergency Management Act of 1976 is for pandemics. The 1945 law Gov. Whitmer is relying on is only mentioned in reference to issuing local curfews. It is left out of all other discussions and considerations about the state’s power to deal with pandemics.

The report purports to be thorough, claiming it considered “all legal powers, authorities, and procedures (including but not limited to police powers, umbrella powers, general public health powers, or emergency powers or authorities).” It describes the EMA as the law that provides the “legal powers/authorities to restrict assemblies and the movement of people during a declared public health emergency.” There is no mention of using the EPGA for such a purpose.

The analysis considers if these powers are sufficient and if there are “any potential gaps or uncertainties.” To this question, these legal experts found that the EMA provides the “sufficient authority” to control the movement of people during an emergency.

It also reviews the legal powers available to restrict people’s movement even if there is no declared emergency under the EMA. This could come about if the governor does not make such a declaration or because the Legislature chooses not to extend the declared emergency beyond 28 days, a process required by the law.

If that's the case, the report explains that public health departments can use their powers to issue quarantine orders, both statewide or locally. Unlike orders issued under the EMA, there is no time limit on how long these public health orders can last. Declaring a separate, statewide emergency under the EPGA, as Gov. Whitmer has done, was not considered.

The use of the EPGA prior to 2020 suggests that what Gov. Whitmer is doing is entirely unprecedented. This 2007 report is another piece of evidence to that effect. In a report probing the state’s legal authority to deal with pandemics, both public health and legal experts from Michigan reported only a miniscule and strictly limited role for the EPGA — nothing like what the governor is attempting to do.

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