This story presented in cooperation with MIRS, a Lansing-based news and information service.
The Michigan Department of Health and Human Services largely reinstated aspects of Gov. Gretchen Whitmer’s COVID-19 emergency orders Oct. 5, including mask requirements, gathering size limitations, and bar restrictions.
With the Michigan Supreme Court majority invalidating Whitmer’s previous orders that rested on a law the court deemed unconstitutional, DHHS Director Robert Gordon said the order relies on a different law that wasn’t at issue in the case from Friday.
He said under MCL 333.2253, if the DHHS director determines that controlling an epidemic is necessary to protect the public health, he or she can prohibit public gatherings, among other actions geared toward protecting public health.
Gordon, who said he once was a law clerk for the U.S. Supreme Court, said the MSC decision from Friday used what he called the “non-delegation doctrine,” which Gordon said had not been used to invalidate a Michigan law until now.
He said when he clerked for SCOTUS, the nation’s high court turned away a non-delegation challenge in an 8-1 vote in an opinion authored by the late GOP-nominated Justice Antonin Scalia.
But, Gordon said, that doctrine “has become popular on the anti-government right” and the MSC majority used it to invalidate the 1945 emergency powers law Whitmer had used during the COVID-19 crisis.
Gordon said other orders from DHHS will soon follow on nursing homes and school reporting requirements. He also said the Michigan Department of Labor and Economic Opportunity (LEO) would be issuing an order in the coming days dealing with workplace protections.
LEO spokesperson Jason Moon said “emergency rules are likely in order to give businesses clarity” on the Michigan Occupational Safety and Health Administration (MIOSHA) continuing to enforce the “general duty” clause with a focus on federal guidelines.
“Regarding the capacity issue, LEO will partner with MDHHS and others to identify the best source of authority to keep Michiganders safe,” Moon said.
But Senate Majority Leader Mike Shirkey (R-Clarklake) said in response to the order, “Unfortunately, the governor has made it clear she has no intention of working with her legislative partners and couldn’t care less about the court’s ruling.”
Shirkey said Senate Republicans had expressed “our desire to return to shared government and work together to keep our citizens safe and our state productive” after the MSC ruling.
But the DHHS order is “further evidence of the Whitmer Administration’s inability to even contemplate working together. It seems the desire to perpetuate unilateral government is irresistible. We are dismayed by Gov. Whitmer’s blatant disregard to hear from the representatives of all Michiganders before issuing new orders.”
Senate Minority Leader Jim Ananich (D-Flint) said the DHHS order “will help create continuity in our battle to keep Michiganders safe from the deadly pandemic,” as “there have been a number of questions about what is and isn’t allowable.”
House Minority Leader Christine Greig (D-Farmington Hills) said the MSC ruling “created chaos and uncertainty for Michiganders as COVID-19 cases continue to spike across our state” but urged GOP legislative leaders to “get off the sidelines and act immediately to protect the lives of Michiganders and safeguard our state’s economic recovery.”
The DHHS order will require people to wear masks at indoor and outdoor gatherings, except for residential gatherings, where the wearing of masks is recommended, he said.
Masks also are still required for schools across the state, except for the Traverse City region, also referred to as region six.
The order does not close bars, but it does require them to close indoor common areas where people could congregate, dance, or “otherwise mingle,” according to the release.
Gordon said the DHHS orders were issued under a narrower scope and he said the adjustment to the bar-related order is one example of that. The order is effective immediately and will run through Oct. 30.
Athletes training, practicing or competing in organized sports must still wear a face covering as well, except when swimming, or consistently maintain six feet of distance.
The DHHS order also puts limitations on gathering sizes that mirror the requirements from Whitmer’s previous orders, according to the release.
The requirements include indoor gatherings of more than 10 and up to 500 people occurring at a non-residential venue, which are permitted, but within the following limits:
– In venues with fixed seating, limit attendance to 20 percent of normal capacity, but in the Traverse City region, gatherings up to 25 percent of normal capacity are permitted.
– In venues without fixed seating, limit attendance to 20 persons per 1,000 square feet in each occupied room. In the Traverse City region, gatherings of up to 25 persons per 1,000 square feet are permitted.
– Non-residential outdoor gatherings of between 100 and 1,000 persons at venues with fixed seating are permitted at up to 30 percent of normal capacity and at 30 persons per 1,000 square feet at venues without fixed seating.
Gordon said the order encompasses the most critical aspects the DHHS wanted to move on quickly and that they have within their authority to act upon.
On a call with reporters to announce the DHHS order, Chief Medical Executive Dr. Joneigh Khaldun said the state’s case rate per capita—81.6 per million people per day—and positive test rates, 3.4 percent, have both increased since early October, and the case rate is the highest it has been since May.
She also said the state’s death rate has increased over the past two weeks, and the one death per million people is the highest it’s been since mid-June.
According to the press release, violations of the 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, and violations of the order are also punishable by a civil fine of up to $1,000.
Gordon said the DHHS order can be enforced by state and local law enforcement.
In response to the DHHS order, Dr. Tina Kerr, executive director of the Michigan Association of Superintendents & Administrators, said, “Districts have been tirelessly working over the past few months to create and implement school safety measures, which are reflected in these orders, and it’s reassuring to hear that their hard work has not been in vain.”
Don Wotruba, executive director of the Michigan Association of School Boards, said the orders, “Provide certainty around face masks and crowd capacities, but there’s still much ambiguity about how school districts should continue to function beyond that,” and called on the Legislature “to work in a swift and bipartisan fashion, just as they did with the state budget, to address these issues and continued uncertainties our districts face.”
The Michigan Education Association (MEA) applauded DHHS for continuing the mask requirement, “which, along with social distancing, is our main weapon to protect our students and public-school educators during the continuing pandemic.” State Superintendent Michael Rice also backed the continued use of masks in schools.