It’s been a confusing few days in Michigan when it comes to figuring out what COVID-19 restrictions are in place following a state Supreme Court ruling on Friday.
Since the ruling, we’ve seen a barrage of new orders from different levels of government, a flurry of statements from Democrats and Republicans, and a lot of confusion for residents and businesses trying to carry on around the state.
So let’s sort through it all. Well, at least we’ll try.
So what happened with the Supreme Court?
Late Friday afternoon (Oct. 2), the Michigan Supreme Court delivered a bombshell ruling striking down Michigan Gov. Gretchen Whitmer’s authority on issuing Executive Orders during an emergency without legislative approval, saying she drew authority from a 1945 law that is unconstitutional.
The ruled the law itself is unconstitutional, not the actions of the governor, to be clear. But the ruling, in theory at least, nullifies anything issued under the previous interpretation.
After the ruling, the governor said the 4-3 decision, with Republican-nominated justices in the majority, was “deeply disappointing.” But Whitmer didn’t signal that she was giving up. She said her emergency declaration and related orders still can remain in place for 21 days, and then many of them will continue “under alternative sources” of law.
“Every state and the federal government have some form of declared emergency,” she said. “With this decision, Michigan will become the sole outlier at a time when the Upper Peninsula is experiencing rates of COVID infection not seen in our state since April.”
Orders in limbo
After the ruling on Friday, local health departments, businesses and residents had no idea what COVID-19 restrictions were in place, or who they should be listening to for guidance.
Some lawyers and Republicans argued that Whitmer’s 21 day window was not legit, and expressed skepticism that anyone would continue following the orders.
Gov. Whitmer and Republican Senate Leader Mike Shirkey both released statements, suggesting the two sides should work together, but early comments appeared to show a major gap in emergency opinion. Shirkey, for one, said he wouldn’t support a mask mandate and felt the state should take a more educational approach.
On Sunday, Michigan Attorney General Dana Nessel announced her office would no longer enforce the governor’s emergency orders. That’s when local health departments got to work.
Local governments step in
One thing the Supreme Court ruling did not strike down was the authority for local health departments to issue their own orders. On Saturday, Oakland County issued its own mask mandate, as confusion over the governor’s mask mandate continued.
Ingham County issued four orders, keeping in place many of the state’s previous restrictions. Wayne County said it would be working to issue its own orders, taking a “scientific and regional” approach. Macomb County said it would act as it did before the court order, until there was more clarification. Washtenaw County issued some restrictions in Ann Arbor and Ypsilanti.
Whitmer asks for clarification
On Monday, it was still unclear what the court’s ruling meant for the governor’s orders. Whitmer asked the court to clarify when her orders would no longer be in effect, asking for a transition period.
“We need this transition period to protect the 830,000 Michigan workers and families who are depending on unemployment benefits to pay their bills and put food on the table, and to protect Michiganders everywhere who are counting on their leaders to protect them,” Whitmer said.
“The Supreme Court’s ruling raises several legal questions that we are still reviewing,” MDHHS Director Robert Gordon said. "While we are moving swiftly, this transition will take time. Make no mistake, Gov. Whitmer will continue using every tool at her disposal to keep Michigan families, frontline workers, and small businesses safe from this deadly virus.
MDHHS issues its own order
On Monday afternoon, after a full weekend of uncertainty, Michigan’s health department, drawing power from a different law, issued its own order, keeping in place three major pillars of the governor’s orders.
The Michigan Department of Health and Human Services issued a new order restricting gathering sizes, requiring face coverings and limiting some businesses across the state.
MDHHS Director Robert Gordon said this new order relies on authorities that were first enacted after the Spanish Flu of 1918, and that were not at issue in the Michigan Supreme Court’s decision.
According to officials, under MCL 333.2253, if the MDHHS director determines that control of an epidemic is necessary to protect the public health, the director by emergency order may prohibit the gathering of people for any purpose and may establish procedures to be followed during the epidemic to insure continuation of essential public health services and enforcement of health laws.
Violations of this order are punishable by a misdemeanor punishable by imprisonment for not more than six months or a fine of not more than $200, or both. Violations of this order are also punishable by a civil fine of fine of up to $1,000.
This order reinstates three aspects of Gov. Gretchen Whitmer’s previous emergency orders:
- Masks are required at indoor and outdoor gatherings that involve people from different households.
- Specific gathering limitations.
- Bars must close indoor common areas, and indoor gatherings are prohibited in most areas where alcohol is sold.
This order is effective immediately and remains in effect through Oct. 30, according to MDHHS officials. Officials said local health departments can enforce the terms of the order. (Read more here)
So what’s next?
It’s likely there will be challenges to this new order from MDHHS. It’s unclear when or how those challenges will be filed.
Gov. Whitmer and the Republican-led Legislature will still need to work together on other emergency topics like unemployment. The Legislature is currently in recess, but it’s expected they will return. We’ll see if the two sides can come to an agreement on something.
In the meantime, lawmakers will wait on the court to offer clarification on when the remaining orders expire, and they will work from there.
For now, the MDHHS order is in effect across Michigan.
UPDATE: MDHHS has continued issuing orders, reinstating some of Gov. Whitmer’s previous restrictions. Here are some of the latest: