• Emergency Public Health Powers in Michigan

    Yesterday, I canvassed the Michigan governor’s emergency powers, which are surprisingly broad. But they do not cover the waterfront of emergency authority in the state. The director of the Michigan Department of Health and Human Services—currently Robert Gordon—has his own suite of emergency powers.

    Once the M-DHHS director determines “that control of an epidemic is necessary to protect the public health,” the Michigan Public Health Code authorizes him to issue “emergency orders” that, among other things, to “prohibit the gathering of people for any purpose.” MCL 333.2253(1). Director Gordon could draw on this authority to adopt statewide or county-specific shelter-in-place rule along the lines of what we’ve seen so far in California.

    Emergency orders can also “establish procedures to be followed during the epidemic to insure continuation of essential public health services and enforcement of health laws.” MCL 333.2253(1). The authority here is really broad: the Code clarifies that “emergency procedures shall not be limited to this code,” meaning that the director could adopt rules for areas that he doesn’t normally oversee. The director, for example, could probably draw on this power to adopt new rules for prisons or other state institutions if he feared that prison outbreaks could compromise “essential public health services.”

    Violation of one of these emergency orders is a misdemeanor, with a maximum prison term of no more than six months. MCL 333.2261. The director can also create a schedule of fines, not to exceed $1,000 per day, for any violations.

    In addition, when the director believes that a crisis “constitute[s] a menace to the public health,” he “may take full charge of the administration” of any laws or rules as necessary to address that menace. MCL 333.2251. As I read it, for example, the director could effectively direct the activities of county and local public health agencies, even if they normally fall outside the ambit of his authority.

    Beyond emergency orders, the director can issue targeted orders to eliminate an “imminent danger” to public health. MCL 333.2251. Though the Code contemplates that these orders will be tailored to particular individuals or discrete groups—it says they “shall be delivered to a person authorized to avoid, correct, or remove the imminent danger or be posted at or near the imminent danger”—the orders may be useful if the pandemic moves into a phase in which we are testing widely for coronavirus and isolating positive cases.

    Even more to the point, the director has specific authorities with respect to suspected “carriers” of infectious diseases. When such a person is either unwilling or unable to stop putting other people at risk, M-DHHS can serve a warning notice on them. If that notice is ignored, the agency can seek an emergency order from the court and have the carrier taken into custody. MCL 333.5205 & 333.5207; see also MCL 333.2453. The procedure is clunky, however, so it’s unlikely to come into play at this stage of the pandemic.

    Finally, M-DHHS has broad authority to “offer free immunization treatments to the public in case of an epidemic or threatened epidemic.” If we get a vaccine, this authority will be key (though the legislature will need to appropriate the money necessary to secure an adequate supply of the vaccine). Conceivably, the director could also issue an emergency order requiring people to get vaccinated if doing so was necessary to protect the broader public health. But we are a long way from that eventuality.

    @nicholas_bagley

     
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