The pandemic has shed light on just how much authority the government can wield in the name of "keeping us safe." Michigan Gov. Gretchen Whitmer made full use of laws available to her to control our lives. The courts rightly keep putting checks on those powers.
With the midterms in sight, Whitmer has done her best to distance herself from the executive orders and health directives that ruled Michigan for a year and a half. Since June, the governor has taken a hands-off approach to COVID-19, even as the state is battling its worst surge yet. That has helped boost her approval ratings.
Yet those who were most impacted by the shutdowns and health department orders — notably restaurants and other small businesses — haven't forgotten the negative consequences and are still fighting back. An Otsego County judge recently called into question the state's epidemic powers that had been little used prior to COVID-19.
Whitmer turned to this law in the fall of 2020, after the Michigan Supreme Court found the emergency powers law she had relied on for unilateral control to be unconstitutional. Under the guise of the health department, Whitmer was able to continue nearly the same orders she'd used before.
Judge Colin Hunter said this sweeping part of the public health law was unconstitutional. It had allowed the state to close schools and restaurants for weeks and put detailed rules in place restricting how we could gather and socialize. One restaurant fought the fines it had incurred for disobeying the health order, leading to this ruling. The Iron Pig Smokehouse in Gaylord had continued to operate during the November 2020 shutdown — the "pause to save lives."
Thousands of restaurants closed in Michigan as a result of the state's various lockdowns and tight restrictions, and the industry remains hard hit. The overall economic impact was sizable, as studies have shown. The state is appealing the opinion, saying it is still using the powers, albeit in a more limited fashion, and claiming the decision could cause "confusion."
Similar to the rationale in the Supreme Court's decision related to Whitmer's emergency powers, this judge said the law usurped the Legislature's power and that it had no clear time limits or guidelines. Hunter also noted: " ... the unexercised but available use of the director's authority could conceivably reach and effect each and every political, social, moral or other societal problem if only the director determines that the concern can now be categorized as an 'epidemic ... '"
Regardless of what Whitmer and others in her administration have said, her hands are not tied — even in light of this latest ruling — to issue additional emergency orders if she thought they were necessary. She could use the 1976 state emergency law that's still on the books. Whitmer has avoided it throughout the pandemic, however, as it requires lawmaker support after 28 days.
This latest decision also comes shortly after the U.S. Supreme Court struck down the Biden administration's vaccine mandate forced on large employers for its overreach.
The message from the courts is clear: Even during a pandemic, governors and presidents aren't dictators and must work with coequal branches of government to take such sweeping actions.
