Lansing — Republican Michigan Senate leader Mike Shirkey described his hopes for a strikingly different response to COVID-19 on Saturday, a day after the the state’s high court issued a ruling that will effectively force Gov. Gretchen Whitmer to begin working more closely with lawmakers.
State government should shift its approach away from mandating residents take certain actions, like wearing masks, and toward encouraging and informing them, said Shirkey, R-Clarklake.
“I still think we have a responsibility to consider the health of those around us,” he said, adding, however, “There will be no caucus support in the Senate, at least, for state mandates for things like masks.”
On Friday, the Michigan Supreme Court ruled 4-3 that Whitmer, a Democrat, didn’t have the authority to issue dozens of unilateral executive orders after April 30 in response to the COVID-19 pandemic.
Those orders have required mask wearing in crowded spaces, capacity limits inside businesses, workplace safety standards, restrictions on public gatherings and the closure of indoor bars.
The court unanimously said one law the governor has used to issue the orders required the Republican-controlled Legislature’s approval, which lawmakers didn’t provide after April 30. Another law delegated too much legislative authority to the executive branch, making it unconstitutional, the court ruled in a 4-3 decision.
“Accordingly, the executive orders issued by the governor in response to the COVID-19 pandemic now lack any basis under Michigan law,” Justice Stephen Markman wrote in the majority opinion.
The landmark decision threw a cloud of uncertainty over the policies that have defined Michigan’s response to a virus that’s been linked to 6,788 deaths in the state.
‘A friendly reminder’
Whitmer said Friday that her orders would remain in effect for 21 days, an apparent reference to a 21-day period in which the governor might be able to request a rehearing. She also said many of her restrictions “will continue under alternative sources of authority that were not at issue” in the ruling.
Officials with multiple organizations that closely monitor state policies said they were also anticipating a 21-day window before the orders became officially invalid.
However, some legal experts and Shirkey contend the 21-day period doesn’t apply because the state Supreme Court was answering a question posed by a Grand Rapids federal judge and a rehearing likely wasn’t possible. Some said the federal court for the Western District of Michigan would now have to issue its own ruling to put the decision into effect.
“Just a friendly reminder to all Michigan residents that just because an activity is legal doesn’t mean it’s advisable,” tweeted Attorney General Dana Nessel, the state’s top law enforcement official. “For instance, just because you can eat Tide Pods doesn’t mean you should eat Tide Pods.”
The governor’s administration is “reviewing the Michigan Supreme Court’s ruling, the existing orders and alternative sources of authority,” Whitmer’s spokeswoman, Tiffany Brown, said. The administration will be making decisions in the days ahead, Brown added.
Shirkey said his understanding is that Whitmer’s orders are still technically in effect until a federal judge rules based on the Supreme Court decision. However, it’s unlikely that anyone would enforce them in light of the decision, he said.
The Senate leader said the chamber’s policy staff has been “deployed to the fullest extent and for the foreseeable future” as a review of the governor’s nearly 200 executive orders takes place.
He said he’s encouraging his members to keep their schedules “flexible” in case extra session days are needed in the coming weeks to replace orders that are no longer valid. Also, Shirkey said he expects to talk with Whitmer “soon.”
The court’s decision was a win for citizens and will allow Michigan residents to demonstrate that they are “capable of making these decisions for themselves,” he contended.
“There should be no spiking of the ball,” Shirkey said. “We still have to be respectful of each other.”
While he voiced opposition to a mask mandate, Shirkey said he hadn’t made up his mind on capacity limits in businesses, such as restaurants. That restriction will be among the policies lawmakers consider early on, he said.
Other sources of authority
Robert Gordon, director of the Michigan Department of Health and Human Services, has the ability to issue his own orders to combat an epidemic.
The department has previously incorporated Whitmer’s executive orders into its own epidemic orders. However, the department has only issued five such orders since the beginning of August. Whitmer has issued more than 30 executive orders over that time.
The Michigan Supreme Court didn’t specifically address the department’s ability to issue orders on its own.
Whitmer’s key orders are “backstopped” by orders issued under other authorities, said Samuel Bagenstos, a law professor at the University of Michigan.
“It will create some uncertainty in the short term, and probably kick off a wave of new litigation, but its practical impact will be limited,” Bagenstos said of the Supreme Court ruling.
One of the orders that Shirkey said lawmakers will have to address is expanded unemployment eligibility during a pandemic that’s led to record jobless claims. The order was issued on May 6, six days after April 30.
The governor has also issued orders that allow local governments to hold their meetings virtually to avoid in-person meetings that could allow the virus to spread.
Christopher Johnson, general counsel for the Michigan Municipal League, said his organization is advising cities they can continue to hold virtual meetings for 21 days under its current understanding of the court process.
Johnson said he knows of an elected official whose husband has a compromised immune system. If virtual meetings are halted, she could be forced to stop participating in meetings, he said.
“That just seems crazy,” Johnson said.
Local governments are also concerned about residents having to go to stores with mask-less people there. Johnson said.
“That’s all fine and good if you’re out in a field by yourself,” Johnson said of the argument that people can make decisions for themselves. “But when you go into a store and you infect somebody else, that’s not right.”
The Prosecuting Attorneys Association of Michigan was still “digesting” the order Saturday, but most prosecutors were anticipating a 21-day window in which the current executive orders would remain in place, said Muskegon County Prosecutor D.J. Hilson, the immediate past president of the association.
“Our initial blush at it and our initial review of it seems to show the 21-day rule does apply,” Hilson said. “But, look, smarter minds may differ and that’s the beauty of the gray area of the law.”
Prosecutors across the state largely have been hesitant to enforce the orders for the past several months, instead relying on education efforts. Because of that, the job of prosecutors in relation to Whitmer’s executive orders likely won’t change significantly with the end of her emergency powers.
“I would probably turn it all over to the public health department,” said Hilson. “It’s our understanding that health departments still have some authority over all this.”
Michigan police chiefs are waiting for direction from Nessel about when the governor’s executive orders expire, said Bob Stevenson, executive director for the Michigan Association of Chiefs of Police. Like Michigan prosecutors, many police agencies have taken a less punitive approach to the orders, trying to educate individuals on how to comply, he said.
For the next few days, Stevenson said, there is bound to be “some uncertainty.”
“I would be very surprised if they’re taking any enforcement action over the course of the weekend because it’s so up in the air,” he said. “But if the attorney general says it’s over, then it’s over.”
The Michigan Restaurant and Lodging Association is appreciative of the opportunity to have more freedom in business operations, said Justin Winslow, president and CEO of the association.
But Winslow described the appreciation as “cautious optimism.” Like other industries, the association still isn’t sure when the orders will dissolve or what authority state and local health departments will retain over business, Winslow said.
He’s hoping at least some of the current restrictions will be lifted through negotiated rules between the Legislature and governor.
But, Winslow said, restaurants and hotels across the state still recognize their duty to keep customers safe.
“Just because the Supreme Court changed their opportunities doesn’t change the fact that the virus is still here,” Winslow said. “They recognize that they need to commit to safety if they want to earn the public’s trust in coming into a restaurant.”