Michigan legislators are trying to gain control over public health departments, which are restricting state activity after a set of state executive orders to curb COVID-19 were deemed unconstitutional.
Before the Michigan Legislature’s session adjourned in December 2020, Michigan State Sen. Lana Theis (R-Brighton) introduced a bill that would have required the director of the Michigan Department of Health and Human Services to seek legislative approval for emergency public health orders lasting longer than twenty-eight days.
The bill, Senate Bill 1253 (S.B. 1253), would have also retroactively canceled the state’s current state of emergency, initially declared by Gov. Gretchen Whitmer (D) on March 24, 2020.
Whitmer vetoed S.B. 1253 on December 31, 2020, the last day of the legislative session.
In a related development, Robert Gordan, the state’s health director, abruptly resigned on January 22.
Checks and Balances, Imbalanced
Some public health measures intended to slow the spread of COVID-19 are at odds with concerns about executive and legislative government power, says Michael VanBeek, Director of Research with the Mackinac Center for Public Policy.
“The issue is checks and balance, specifically about the Legislature’s ability to delegate its lawmaking power,” VanBeek told Health Care News. “The Michigan Supreme Court ruled that the law that Gov. Whitmer was using to issue pandemic policies unilaterally was unconstitutional because it was an inappropriate delegation of power from the legislature to the executive office. The statute the health department is using suffers from the same problem the [state] Supreme Court found with the governor’s law: It provides no real limitations on the duration or extent of how these powers may be used by the director of the health department.”
S.B. 1253 would have set guardrails on executive power in Michigan, says Samantha Fillmore, a state government relations manager for The Heartland Institute, which co-publishes Health Care News.
“This legislation is ultimately intended to set reasonable time limits on emergency orders issued in response to an epidemic or public health concern,” Fillmore said. “With the sudden onset of the coronavirus pandemic, we saw many governors and state Departments of Health across the nation overextend, and in some instances, abuse their authority during states of emergency. Legislation such as S.B. 1253 has been proposed as a necessary check on this authority in Michigan.”
First, Do No Harm…
Public health and economic prosperity go hand in hand, and the government should work with a light touch when interfering in the lives of people, VanBeek says.
“They are intertwined tightly: you can’t impact one without impacting the other,” Van Beek said. “Lawmakers should limit their actions to policies directly related to helping ensure there is sufficient health care capacity to deal with the spread, but that’s it. They should not be restricting people’s behavior beyond that.”
As vaccine distribution begins to ramp up in the United States, lawmakers should start thinking about how to safely return their states to some semblance of normality.
“COVID-19 was unpreceded in the sense that we had zero knowledge about the virus upon its sudden arrival to the states,” Fillmore said. “Growing knowledge on virus transmission, accompanied by the rollout of vaccines around the country, should sway lawmakers to feel more inspired than ever to regain power from overzealous lawmakers and government powers. Many can begin to see the light at the end of the tunnel with this and want to begin giving their constituents their lives back.”
The lockdowns in Michigan have had limited impact in stopping the virus. Between March 1 and December 31, 2020, more than 500,000 Michigan residents contracted COVID-19. Almost 13,000 individuals in the state are confirmed to have died due to COVID-19 during the same time period.
“I don’t believe lockdowns will ever happen again,” said Jeffrey Tucker, editorial director of the American Institute of Economic Research on the Heartland Daily Podcast, on January 4. “I think the damage has been so traumatizing that I fully expect that the political fallout from this, we haven’t near seen it yet, is going to amount to be revolutionary. The governors that locked down are going to go down in disgrace. A new generation of leaders is going to rise up who are specifically, anti-lockdown and I think it could lead to a real political alignment in this country in a way, that long-term, will be very good for the country.”
Hindsight for 2020
Public health does not necessarily need to come at the cost of government imposition and the economic turbulence experienced by many in 2020, Fillmore says.
“Protecting public health has been at the forefront of every policy-makers mind throughout the coronavirus pandemic, however, insulating the public health did not have to come with such devastating economic costs,” Fillmore said.
The lockdowns have left tens of thousands of people without jobs and closed hundreds of small businesses. At 6.9 percent, Michigan has the tenth highest jobless rate in the U.S., according to the U.S. Bureau of Statistics.
“Yelp estimates that 60 percent of U.S. businesses that have closed since the start of the COVID-19 pandemic have shut down permanently,” Fillmore said.
S.B. 1253 would have benefited Michigan residents without any accompanying downsides or unintended consequences, Van Beek says.
“I cannot think of any downsides,” Van Beek said. “It would have required that the people’s representatives have a say in matters that could affect every resident in the state and not leave these important public health decisions up to an unelected bureaucrat.”
Jesse Hathaway (firstname.lastname@example.org) is a policy advisor for The Heartland Institute.