We are currently exploring the order issued on October 5th by the Michigan Department of Health and Human Services (MDHHS).  After our preliminary review, we feel that with respect to businesses this order seems appropriate.  However, with regards to individuals, it only seems appropriate on its restrictions for social gatherings.  

To understand this lets dive into some of the laws establishing and authorizing the Department of health. There are dozens of with regards to this, as enforced through its various local agencies, to develop procedures and standards allowing health officers to deal with this very issue. Local Health Departments (Counties, ie Oakland County) are authorized to implement procedures “relating to the discovery and care of an individual having or suspected of having a communicable disease or a serious communicable disease or infection.” MCL 333.5115. 

The Law even defines a “Carrier” as an individual who serves as a potential source of infection and who harbors or who the department reasonably believes to harbor a specific infectious agent or a serious communicable disease or infection, whether or not there is present discernible disease. MCL 333.5201. (1)(a) (emphasis added). The Law further lays out the process required to treat, voluntarily or involuntarily these carriers. MCL 333.2453. 

If a local health officer determines that control of an epidemic is necessary to protect the public health, the local health officer may issue an emergency order to prohibit the gathering of people for any purpose and may establish procedures to be followed by persons, including a local governmental entity, during the epidemic to insure continuation of essential public health services and enforcement of health laws. MCL 333.2453(1). 

If a department representative or a local health officer knows or has reasonable grounds to believe that an individual has failed or refused to comply with a warning notice issued under section 5203, the department or local health department may petition the circuit court for the county of Ingham, Oakland or for the county served by the local health department for an order, MCL 333.5205(1) which could, should there be clear and convincing evidence, require anything from attending an education program to undergo tests, impose a cease and desist order, or be quarantined. MCL 333.5205(6).

So what does all of this mean?  It means that the governor can not make and impose rules or executive orders through the Emergency Powers of Governor Act of 1945.  This was decided with the 4-3 ruling of the Michigan Supreme Court that said doing so was unconstitutional in its entirety because it unlawfully cedes powers that belong with the Legislature of the governor.  They also established that the Emergency Management Act of 1976 cannot be used for Whitmer to maintain a state of emergency beyond 28 days and would need legislative approval to do so.  With these rulings, we now are in the state of panic of what MDHHS is saying and the counties and how we interpret the laws.

Because of this ruling, it is now up to the local health departments.  This would be your specific county health departments.  Just because one county has an outbreak does not mean that every county need to follow stern mandates. 

Where it gets tricky is the involvement of the MDHHS.  

So do I have to wear a mask and follow all the “orders”? 

Yes, mask up for now and follow the orders.  MDHHS and various county orders have effect of law until overturned.  We are working diligently to ensure that these rules and ordinances are lawful and constitutional. If they are not we will work to get them overturned.  We got you!