With just 80 confirmed cases, Michigan has so far been spared an acute outbreak of the coronavirus. But our time is coming. Already, Governor Whitmer has taken steps to slow the virus’s spread, including closing schools and restaurants and banning large public gatherings. She will have to get much more aggressive in the coming weeks and months.
Now is an especially auspicious time to take stock of the governor’s emergency powers. Though I’ll focus on Michigan, other states have similar laws on the books, so this post may be instructive if you’re trying to get a bead in general on what powers state can use to cope with the pandemic. I’ll leave the governor’s powers under her public health authorities for a future post.
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Under the Emergency Management Act, the Michigan governor can declare a state of disaster in response to a severe risk of loss of life arising from, among other things, an “epidemic.” MCL 30.402(e). During a disaster, she has the authority to “issue executive orders, proclamations, and directives having the force and effect of law.” MCL 30.403(2).
That’s a startling amount of power. During disasters, the Michigan legislature has effectively delegated to the governor the power to make whatever laws she deems appropriate. Governor Whitmer drew on that authority when she closed schools, restaurants, and large public gatherings.
There are only a few guardrails. Willful disobedience of a gubernatorial order or directive only constitutes a misdemeanor, not a felony. MCL 300.405(3). And the Act “shall not be construed” to allow for interference in a labor dispute or for the regulation of news reporting. MCL 30.417. Otherwise, the Act’s delegation of lawmaking power is vast.
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Drilling down, the Act contemplates that the governor may need to requisition the use of both public and private property. On the public side, she may “utilize the available resources of the state and its political subdivisions” and transfer authorities among state departments. MCL 30.405(1)(b). The governor, for example, could draw on that power to requisition public schools for use as overflow spaces for hospitals.
On the private side, the Act specifies that the governor may “commandeer or utilize private property” as necessary to cope with the emergency, “[s]ubject to appropriate compensation, as authorized by the legislature.” MCL 30.405(d). Though the governor may not use that power to confiscate any “lawfully possessed firearms or ammunition,” MCL 30.405(2), it is otherwise open-ended.
So Governor Whitmer could, if she wished, commandeer a privately owned stadium, convention center, or church as overflow treatment spaces. If necessary, she could even requisition an entire hospital and dedicate it to coronavirus treatment.
While the question is not entirely free from doubt, a legislative authorization of “appropriate compensation” does not need to come prior to any commandeering. Rather, “[a] record of all property taken or otherwise used” must be sent to the governor, implying that she’ll keep a running tally of the state’s obligations. MCL 30.406(2). If a claimant disputes the amount that the state offers, the claimant can sue in the state court of claims to determine appropriate compensation.
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The governor has the power not only to make laws, but to unmake them. She can suspend any regulatory law or rule when strict adherence would “prevent, hinder, or delay necessary action.” MCL 30.405(a). (She can’t, however, suspend criminal process or procedures.)
Governor Whitmer, for example, could exercise her authority to alter or amend any licensing or scope-of-practice rules for medical providers. Doing so could enable her to quickly move retired physicians or trainees onto the front lines.
Intriguingly, the Act automatically provides that any physicians, nurses, hospitals, or other medical providers who provide services in connection with a declared emergency are immune from liability for routine negligence, though not gross negligence. MCL 30.411(4). That’s really good news: some doctors report that they fear liability for refusing to admit or for discharging patients who are in less dire need of medical attention.
Even apart from medical professionals, the governor—or, more specifically, the state director of emergency management—is empowered to offer the same kind of protection to any “donor or supplier” of “voluntary or private assistance.” MCL 30.407(6). The governor, for example, could create a liability shield for non-professional volunteers who offered to care for people confined to school gyms or church basements.
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To aid in carrying out her directives, the governor is free to exploit any and all of the state’s available resources, including those of the police departments and fire departments. MCL 30.405(b). She can also shuffle powers among state and municipal agencies as she sees fit. MCL 30.405(c).
Beyond that, the governor can “order to active state service any members of the Michigan National Guard.” MCL 32.551. The Act then contemplates that the Guard will “engage in emergency or disaster relief,” and cross-references the governor’s emergency powers under the Emergency Management Act. MCL 32.579(2). At least seven states have already drawn on similar authority to activate their National Guards, which are assisting in food delivery and decontamination. Governor Whitmer could do the same here.
Startlingly, the governor even has the authority to declare martial law in any county or city in which National Guard troops are serving. MCL 32.575.