HAVLICEK: Michigan is in a state of confusion

Published 11:05 am Wednesday, October 7, 2020

Recent news out of the state capitol has once again changed the balance of power in our state.

Last Friday, the Supreme Court unanimously ruled Gov. Whitmer had no authority under a 1976 emergency law to extend Michigan’s state of emergency past April 30 without approval from the Legislature. Then, the court split 4-3 in ruling that it was unconstitutional for the governor to use the 1945 Emergency Powers of the Governor Act to issue executive orders because it improperly delegated legislative powers to the executive branch.

Gov. Whitmer had utilized the 1945 Emergency Powers law to issue 123 executive orders since April 30. According to Supreme Court Justice Stephen Markman’s majority opinion, “The executive orders issued by the governor in response to the COVID-19 pandemic now lack any basis under Michigan law.”

Needless to say, this has sent the state of Michigan into a state of confusion. Are restrictions on capacity still required? Can you visit a loved one in a nursing home? Are masks still mandated? Do Michiganders lose their unemployment benefits?

After the ruling, Gov. Whitmer issued a statement arguing the executive orders remain valid for another 21 days. Many have disagreed, arguing the 21-day period she references mistakenly refers to the deadline for an appeal. Others simply cite the above quote from Justice Markman as proof the ruling immediately negates all orders. Reread and you’ll notice the word “now” carries more weight with context. As of writing this article, a conclusive determination has not been made.

Regardless, Attorney General Dana Nessel has already announced that citizens found violating terms of the governor’s orders would no longer be subject to criminal prosecution, effectively ending the orders either way.

So, what does this mean moving forward? Ideally, the governor will work with state lawmakers to negotiate a new statutory framework for Michigan’s coronavirus response. Until then, look out for emergency orders like the one from the Michigan Department of Health and Human Services on Monday which used its own delegated authority to reinstate mask requirements, limits on gathering sizes and restrictions on certain establishments and activities that were struck down four days earlier.

One thing is certain: businesses should continue to uphold the public health guidance issued by the CDC and your local county health department as it relates to their particular industry. Remember, the absence of executive orders does not mean the absence of COVID-19. The virus is real, and we still need to take it seriously.

Additionally, we as consumers must remain patient when interacting with businesses. We must recognize that not only do businesses have a right to implement health and safety protocols on their private property, they have a responsibility.

This pandemic has caused enough economic stress and uncertainty. Right now, let’s come together and focus on keeping our customers safe, our employees healthy, and our businesses open.