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What the Michigan Supreme Court’s Ruling Could Mean for COVID-19 Regulations at Restaurants and Bars

A decision that effectively invalidated Gov. Whitmer’s executive orders is sowing confusion into Michigan’s COVID-19 response

A green sign on the open door to El Nacimiento in Detroit. Christian Gerard
Brenna Houck is a Cities Manager for the Eater network. She previously edited Eater Detroit and reported for Eater. You can follow her on the internet at @brennahouck.

On Friday, October 2, the Michigan state Supreme Court issued an 4-3 opinion that effectively invalidated Gov. Gretchen Whitmer’s extensions of a state of emergency since April 30, and the subsequent executive orders meant to curb the spread of COVID-19. The opinion is likely to throw a new element of chaos into an already complicated situation for residents and business owners.

Does this mean, for example, that rules limiting restaurants and bars to 50 percent capacity through state executive orders are no longer enforceable? Can bars now reopen indoors? Can customers enter grocery stores without masks? Do farms and food-processing facilities no longer have to participate in mandatory testing?

The answers to these questions are evolving. Here, Eater has attempted to break down the situation and what could potentially result from this Supreme Court decision.

What’s the situation?

Since April, Gov. Gretchen Whitmer, a Democrat, and Michigan’s Republican-majority legislature have been at odds over the handling of the COVID-19 crisis. On April 30, the legislature chose not to extend the governor’s emergency powers, which had allowed her to impose sweeping executive orders including the stay-at-home order that close businesses, including restaurants and bars, for in-person service for three months. Whitmer, however, has continued to extend the state of emergency since that time, arguing that she has the power to do so under the the Emergency Management Act of 1976 and the Emergency Powers of the Governor Act from 1945. Attorney General Dana Nessel, also a Democrat, backed Whitmer’s interpretations of the state laws giving her the authority to issue states of emergency.

Nevertheless, the state GOP has filed lawsuits against the governor, seeking to limit her power. Other business groups and an organization called Unlock Michigan have also been filing lawsuits against the state and circulated petitions to limit the governor’s powers.

What was the court decision?

On Friday, October 2, Michigan’s Supreme Court issued a ruling for a portion of a case unrelated to the GOP lawsuit. This ruling essentially invalidates the governor’s post-April 30 executive orders. The majority on the court stated that:

... the Governor lacked the authority to declare a “state of emergency” or a “state of disaster” under the EMA after April 30, 2020, on the basis of the COVID-19 pandemic and that the EPGA violated the Michigan Constitution because it delegated to the executive branch the legislative powers of state government and allowed the executive branch to exercise those powers indefinitely.

Following the ruling, the governor’s office issued a statement reiterating Whitmer’s concerns that the COVID-19 pandemic continued to threaten the lives of people living in Michigan, noting that it has killed more people in the state in the past six months than Michiganders who died in World War I.

Today’s Supreme Court ruling, handed down by a narrow majority of Republican justices, is deeply disappointing, and I vehemently disagree with the court’s interpretation of the Michigan Constitution. Right now, every state and the federal government have some form of declared emergency. With this decision, Michigan will become the sole outlier at a time when the Upper Peninsula is experiencing rates of COVID infection not seen in our state since April.

Whitmer has also asserted that the ruling doesn’t take effect until 21 days after its issue and that she will be reasserting executive orders through other sources of legal authority during that time. She’s since issued a statement calling on the Michigan Supreme Court to clarify that its ruling does not take effect until Friday, October 30.

On Monday, October 12, the Supreme Court did as Whitmer asked and confirmed that the ruling was effective immediately. The ruling doesn’t pertain to Michigan Health and Human Services orders, which now stand in place of Whitemer’s orders.

What does this mean for enforcement?

Over the weekend, people across the state scrambled to determine what the ruling would mean for Michigan’s pandemic response. The Michigan Department of Health and Human Services (MDHHS) has already issued some epidemic orders that mirror Whitmer’s executive orders and could continue to do so. Whitmer may move to issue more orders through the authority of this agency.

Meanwhile, Attorney General Dana Nessel’s office has concluded that it no longer has the legal authority to enforce Whitmer’s executive orders, but suggested that local law enforcement agencies or state departments could enforce COVID-19 rules. Press Secretary Ryan Jarvi wrote in a statement:

In light of the Supreme Court’s decision on Friday, the Attorney General will no longer enforce the Governor’s Executive Orders through criminal prosecution. However, her decision is not binding on other law enforcement agencies or state departments with independent enforcement authority. It’s her fervent hope that people continue to abide by the measures that Governor Whitmer put in place —like wearing face masks, adhering to social distancing requirements and staying home when sick — since they’ve proven effective at saving lives. If it weren’t for the Governor’s actions, countless more of our friends, family and neighbors would have been lost to COVID-19. We can respect both the court’s decision and the advice of medical experts by continuing with these important measures voluntarily.

That statement from the AG’s office also suggests that MDHHS epidemic orders could stand in for executive orders.

Of course, one could argue that enforcement of state rules was spotty at best before this ruling. Several police departments shirked the governor’s authority this summer and refused to enforce the mask mandate among other rules.

The Michigan Occupational Safety and Health Administration (MIOSHA) recently started stepping up random inspections of businesses, including restaurants and grocery stores, in an effort to enforce COVID-19 safety measures. That’s resulted in thousands of dollars in fines for local businesses — some of which are now arguing that the financial penalties are invalid. According to the Detroit News, state regulators have stated that MIOSHA COVID-19 rules won’t be rescinded and that the citations still stand.

Does this mean Michigan’s COVID-19 rules no longer exist?

While the situation is still unfolding, what’s clear is the Supreme Court’s decision has sowed confusion surrounding the state’s pandemic response. The state’s senate majority leader Mike Shirkey, a Republican, has stated that the GOP will likely move to eliminate mask mandates and business regulations, according to Bridge.

The ruling could also result in a patchwork of local ordinances, creating more confusion. Oakland County is already ramping up its efforts to impose local rules in the vacuum of a lack of statewide mandates. Health Officer Leigh-Anne Stafford has issued a local health order requiring that Oakland County residents wear masks or facial coverings when they leave their homes. The rule establishes requirements for activities like going to school and dining and drinking at food service establishments. Violations could result in a misdemeanor. “Additional health orders may be issued in the coming days to cover capacity at restaurants, bars, employee health screenings, and other public health concerns,” per the release.

Ingham County has also begun issuing health orders requiring the use of face masks, limiting social gatherings, capping restaurant capacity at 50 percent, and requiring employee screenings for COVID-19.

Wayne County’s Executive Warren C. Evans issued a statement calling for the governor, legislature, and representatives from Michigan’s most populous counties to come together and devise a coordinated response before the orders expire on Friday, October 23.

Eater has reached out to Wayne County and MIOSHA for more information on how they plan to respond to the court ruling.

MDHHS also started reinforcing rules previously issued under Whitmer’s administration, asserting authorities established during the 1918 flu pandemic. In an epidemic order issued on Monday, October 5, the department established requirements for mask use in residential and non-residential spaces as well as capacity limits for different venues. Under the order, people at food establishments may only take off their masks when seated to eat or drink. Food and beverage establishments must: “close indoor common areas in which people can congregate, dance, or otherwise mingle” and “prohibit indoor gatherings anywhere alcoholic beverages are sold for consumption onsite, except for where parties are seated and separated from one another by at least six feet, and do not intermingle.”

The best rule of thumb, of course, is to continue following the guidance of health officials. Wearing a mask securely over your nose and mouth in public places and around people outside of a household, avoiding crowds and maintaining six feet of distance between yourself and others, and washing your hands with soap and water are the best ways to protect everyone.

Update: 5 p.m., October 13: This story has been updated to reflect that the Michigan Supreme Court’s ruling is effective immediately. MDHHS orders still apply.

Update: 5:56 p.m., October 5: This story has been updated with information regarding a new MDHHS epidemic order.

Update, 1:53 p.m., October 5: This story has been updated to reflect that Gov. Whitmer is asking for clarification from the Supreme Court on when the ruling will take effect.

Update, 11:30 a.m., October 5: This story has been updated to address statements from Wayne County’s executive and new ordinances from Ingham County.

Supreme Court Decision [Official]
MDHHS Epidemic Orders [Official]
Statement from Governor Whitmer on Michigan Supreme Court Ruling on Emergency Powers [Official]
Michigan Supreme Court Rules Whitmer Lacks COVID-19 Emergency Powers [Bridge]
Statement from Governor Whitmer on Michigan Supreme Court Ruling on Emergency Powers [Detroit News]
GOP Leader: No Mask Mandates, Michigan Needs to Learn to Live With Coronavirus [Bridge]
Oakland County Health Officer Requires Masks or Face Coverings in Public [Official]
Order Closing Michigan Restaurant for Dine-In Service in Limbo as Gov. Whitmer, Legislature Argue Over State of Emergency [ED]
Gov. Whitmer Extends Michigan Stay-At-Home Order, Outlines Plan for Returning to Work [ED]