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Here's why Gov. Whitmer's latest COVID-19 restrictions are likely legal

Riley Beggin Craig Mauger   | The Detroit News

Lansing — The new order by Michigan Gov. Gretchen Whitmer's administration to combat a surge in COVID-19 cases by suspending in-person instruction at high schools and colleges and halting indoor dining at restaurants is unlikely to succumb to a challenge in the courts, legal experts said.

The state law that the new order is based on is tighter and more legally sound than another that was previously used by Whitmer to issue restrictions and was ruled unconstitutional, according to a handful of attorneys with differing backgrounds.

Likewise, a lawsuit to strike down the order and others like it would potentially have to run through the Michigan Supreme Court, which will have a new Democratic majority — that's likely more favorable to the Democratic governor — in fewer than 50 days.

The public health code the Whitmer administration is now relying on is narrowly focused on responding to epidemics, said Richard McLellan, a constitutional law expert who advised former Gov. John Engler, a Republican, and supported Whitmer's run for governor in 2018.

The law was enacted by the Legislature and it delegates power to Robert Gordon, the director of the Michigan Department of Health and Human Services, McLellan said.

"It's fairly clear," he said. "I don't think you could challenge the fact that there's an epidemic."

The way the Whitmer administration has used the public health code so far to primarily focus on limiting public gatherings makes a challenge "a little more difficult," said Patrick Wright, vice president for legal affairs at the free-market-oriented Mackinac Center for Public Policy in Midland.

"There are some questions with it for sure," added Wright, whose organization worked on a past lawsuit that successfully challenged the governor's unilateral executive orders.

The Mackinac Center recognizes the virus poses a serious problem but wants to ensure the response is done in a constitutional and legal manner, Wright said.

Michigan reported 12,763 new COVID-19 cases for Sunday and Monday, pushing the overall total to 264,576 along with more than 8,000 total deaths.

Focus turns to health code

For six months, high-stakes legal fights over the governor's ability to unilaterally respond to the pandemic without input from the GOP-controlled Michigan Legislature have been in the spotlight.

During the initial surge of the virus, Michigan's governor primarily relied on two state laws that allowed her to declare states of emergency and issue unilateral executive orders, such as her stay-at-home restriction and a requirement people wear masks in public places.

On Oct. 2, however, the Michigan Supreme Court ruled unanimously that Whitmer didn't have the authority under the 1976 Emergency Management Act to continue declaring emergencies after 28 days without the GOP-controlled Legislature's approval.

In a more hotly contested 4-3 decision, the state's high court ruled that the 1945 Emergency Powers of the Governor Act delegated too much legislative authority to the governor and was unconstitutional.

Since the court's ruling, Whitmer's administration has been relying on the public health code to respond to the spread of the virus.

The code allows the Michigan health department to "prohibit the gathering of people for any purpose" and to "establish procedures" to ensure the "continuation of essential public health services and enforcement of health laws" during an epidemic.

Some Republicans have contended that the administration's use of the health code is improper under the same arguments that made the Emergency Powers of the Governor Act unconstitutional. But it's not that clear cut, legal experts said.

The lawsuit that ended Whitmer's former powers didn't touch on the state law that Gordon used to issue his orders, said Samuel Bagenstos, a law professor at the University of Michigan who was nominated by Democrats for the Michigan Supreme Court in 2018.

That decision was based on "the incredible breadth" of Whitmer's powers under the law, and the law allowing the state health department's orders is "much narrower in scope," he said, which makes it unlikely to be struck down for the same reason.

"The court would have to go way beyond what it did in October in order to invalidate the orders here," Bagenstos said. "It would be an incredibly aggressive step for the court, and it's not something that's supported by the prior decision."

A different Supreme Court

Whitmer's latest move might be further protected by the changing political winds on the state's high court. 

When the Michigan Supreme Court ruled on Oct. 2, the four Republican-nominated justices and three Democratic-nominated justices were divided along party lines on the separation of powers question.

With the election of Elizabeth Welch, a Democratic nominee in November, the state Supreme Court will swing to a Democratic majority at noon on Jan. 1. Welch replaces Republican-nominated Justice Stephen Markman, who wrote the majority opinion in the October case and will leave the court at the end of the year to retire.

"I think people would anticipate it's a court that's going to be more open to the governor's actions in attempting to respond to this pandemic," Bagenstos said. "But I have every confidence that the court's going to decide this question based on their best understanding of the law."

About 45 days remain until Welch replaces Markman. While it's not impossible that a legal challenge could reach the court in that time, the Mackinac Center's Wright noted that the case that led to the Oct. 2 decision took a couple of months to get there.

"Even if something were to get through the Michigan Supreme Court fairly quickly and it was controversial, it would probably be reheard by a different court," he noted, meaning it's possible the current court could rule and then the new court could issue a different ruling on rehearing soon afterward in 2021.

Bob LaBrant, former general counsel for the Michigan Chamber of Commerce, said it "would almost be impossible" to get a case to the state's top court by the end of the year.

Whitmer defends latest action

During a Monday morning press briefing, Whitmer said the public health code was the "correct source" of executive authority to keep people safe under GOP-nominated state Supreme Court Justice David Viviano's individual opinion in the Oct. 2 decision.

"This is precisely the power that one of the justices pointed to in terms of actions we can and should be taking throughout this pandemic," Whitmer said.

Viviano argued that the governor's actions to combat a public health crisis should fall under the public health code and not the Emergency Powers of the Governor Act, which he said focused on "public safety," not "public health."

The law didn't refer to the "tools traditionally associated with public health emergencies," Viviano found.

"This stands in stark contrast to the provisions from the 1945 health code discussed above," he added. "Those statutes referred to quarantines, removal of the sick and medical treatment — the common responses to epidemics for centuries."

But there have already been legal challenges filed against orders issued under the public health code.

In federal court in October, a Hudsonville Christian school called Libertas Classical Association contended its constitutional rights were violated when the county health department threatened to shut the school because of violations of the state's mask mandate and gathering restrictions. A federal judge denied the school's request for preliminary injunction and it hasn't yet been appealed.

Similarly, a Grand Haven chiropractor's office filed suit in the Michigan Court of Claims, arguing that the health department's mask mandate exceeded what orders it is allowed to issue under state law. 

The rapid addition of more rules by state agencies creates "a legal minefield for well-intentioned businesses," Semlow Peak Performance Chiropractic's lawyers said. 

"Defendants are unlawfully expanding their authority to now include requiring face coverings, contact tracing, data collection requirements of businesses, prohibiting the sale of concessions at sporting events, and numerous other requirements beyond the scope of their statutory authority," the lawsuit said.