Opinion: Michigan is no longer in a 'state of emergency'

According to Gov. Gretchen Whitmer’s office, the “health, economic, and social harms of the COVID-19 pandemic remain widespread and severe, and they continue to constitute a statewide emergency and disaster.” In the same recent press release, Whitmer extended the state of emergency until Sept. 4.

With her promise she “will continue to use every tool at my disposal to protect Michigan residents from the spread of this virus,” there is no doubt we can expect the state of emergency to be extended, most likely into 2021 and possibly later unless there is a vaccine (or the Michigan Supreme Court rules against the governor). But simply declaring a “statewide emergency and disaster,” does not make it so.

Since she declared a state of emergency on March 10 and shut down our state, Whitmer has aggressively exercised her executive powers, addressing virtually every area of our lives. Claiming unprecedented authority under the Emergency Powers of Governor Act, Whitmer has issued more than 160 executive orders with no sign of letting up. 

The EPGA, however, is not a blanket authorization of unlimited executive power. It only authorizes the governor to proclaim a state of emergency “during times of great public crisis, disaster, rioting, catastrophe, or similar public emergency…or reasonable apprehension of immediate danger of a public emergency of that kind, when public safety is imperiled…”

While the statute provides its own definition of an emergency, this is consistent with one legal definition of an emergency: “a sudden, urgent, usually unexpected incident or occurrence that requires an immediate reaction or assistance.” No one can seriously argue that our state presently faces a sudden emergency that requires an immediate response or assistance. 

Whitmer’s own actions in rolling back the shutdown (albeit arbitrarily) belie her claim that our state is in the midst of a statewide emergency. Obviously, if shutdowns “save lives” as Whitmer has repeatedly claimed and public safety was currently imperiled, it would be reckless to re-open our economy in the midst of such a crisis.

Furthermore, although we have experienced an increase in COVID-19 cases and hospitalizations of late, the current data from the state of Michigan indicates our hospitals have large surpluses of PPE and approximately 2,000 available ventilators, more than 700 ICU beds, and more than 6,500 inpatient hospital beds available to treat a current total of fewer than 1,000 COVID-19 patients. Certainly, our state is not facing anything remotely approaching a “statewide emergency and disaster.” 

Under the “MI Safe Start” plan announced by Whitmer in May, six phases were outlined to “re-engage Michigan’s economy” with the ominous warning that “this will be a long process.” In fact, it could be years. Phase six is not reached until there is “sufficient community immunity” made possible by a “high uptake of a therapy or vaccine.”

With the real possibility that a vaccine will not be approved, manufactured and then widely distributed for a year or more, we are facing — in violation of our constitutional separation of powers — the prospect of executive rule by emergency decree for years to come. 

Whether or not you agree with Whitmer’s handling of the COVID-19 crisis, it should trouble everyone that by erroneously re-declaring a “statewide emergency and disaster,” she has become a law unto herself. Michigan residents deserve better and our constitution requires it.

Brett A. Howell is an estate planning and elder law attorney in Grand Blanc.