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On March 10, 2020, Michigan Gov. Gretchen Whitmer issued an executive order declaring a state of emergency to address the COVID-19 pandemic. On April 1, 2020, this executive order was updated to a “state of disaster” which the Michigan legislature adopted on April 7 and approved through April 30, 2020. As NPR notes, “Whitmer cited two state laws — the Emergency Management Act of 1976 and the Emergency Powers of the Governor Act from 1945 — as granting her the authority to continue the emergency orders past April 30.” Last Friday, however, in a 4-3 majority opinion, the state’s Supreme Court said she did not have that authority. Here’s what both sides are saying about the ruling:
On the Right: The Wall Street Journal’s Editorial Board celebrates “An End to Michigan’s Endless Emergency” as their article is titled. The board writes that “Michigan’s one-woman rule is no more” and cites Michigan’s Supreme Court who quoted Montesquieu: “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty.” In regards to the Emergency Management Act of 1976, Ms. Whitmer argued that she had no choice but to continuously redeclare a state of emergency after April 30. However, the WSJ Ed Board highlights the counterargument from Justice Stephen Markman who wrote, “To allow such a redeclaration would effectively render the 28-day limitation a nullity.” In regards to the Emergency Powers of the Governor Act, Ms. Whitmer argued she can take “reasonable” action as needed “to protect life and property or to bring the emergency situation within the affected area under control.” The WSJ Ed Board argues that “unlike the other law, this one includes no specific time limitation, so in theory, the Governor’s emergency powers could continue indefinitely.” This meant “Mrs. Whitmer’s orders have required residents to stay home; mandated masks; forced the closure of churches, cafes, salons, gyms, schools, libraries and so forth; prohibited nonessential travel; and barred private gatherings between people from different households.” Citing Markman’s majority opinion again, the Justice wrote that “no individual in the history of this state has ever been vested with as much concentrated and standardless power to regulate the lives of our people, free of the inconvenience of having to act in accord with other accountable branches of government.” In short, the WSJ Editorial Board believes that Mrs. Whitmer leveraged loopholes in Michigan’s legal system to concentrate power during the pandemic.
On the Left: Writing for CNN, physician, epidemiologist and former health director for the city of Detroit, Abdul El-Sayed, begins by saying “When protesters armed with semi-automatic weapons stormed the Michigan state capitol in May to protest Gov. Gretchen Whitmer’s stay-at-home orders during the height of the pandemic, it was a sign of things to come.” El-Sayed says “As vivid images of the protest spread, the country saw just how rabid the opposition to common-sense public health interventions had become.” What’s lost in this “political theatre,” El-Sayed writes “is the fact that these lockdown orders—indeed all public health interventions–were intended to protect people against the COVID-19 pandemic. And they were effective. A study conducted by researchers in the UK found states that were best able to reduce mobility saved more lives—and mobility rates decreased more in Michigan under Whitmer’s stay-at-home orders than most states in the US.” El-Sayed continues, saying the “campaign to strip [Whitmer] of the emergency powers she has used to close schools and businesses as well as issue mandates on masks and social distancing… threatens all of our safety and shows just how far anti-science political activists might go to get their way.” El-Sayed then cites a Washington Post / Ipsos poll in May which showed that “72% of Michiganders said they approve of Whitmer’s handling of the pandemic.” El-Sayed concludes by saying, “As we head into the fall, many epidemiologists are forecasting a potential upswing in Covid-19 cases. In the face of a second wave, swift executive action may be necessary to save lives. But given the efforts of Unlock Michigan, and the opposition from a GOP legislature tilting toward Trump-style pandemic denialism, Whitmer may lack the capacity to do so.”
Flag This: If you live in Michigan you know what’s going on. If you don’t this story matters because it shines a light on battles that are unfolding in other areas across the country and the world. Essentially, Michigan is a microcosm for the debate over how much individual liberty should be granted during a pandemic. Some think more, some think less. Generally, Republicans favor more individual liberty while Democrats favor less, under the assumption that the power is being used in the appropriate manner to protect members of a certain society. People may think this is a US-specific issue, but it’s not. There have been marches in Germany, the UK, Spain, and elsewhere over what people perceive to be draconian lockdown rules that severely limit personal freedom. The ruling doesn’t mean this debate is over in Michigan. In fact, it does not take effect for at least 21 days, which is the usual length of time a party to a case has to ask the court to reconsider a decision Detroit Free Press notes. The debate in the Great Lake State will likely not abate any time soon.