Whitmer vetoes bill to limit health agency's powers during pandemic

Craig Mauger
The Detroit News

Lansing — Michigan Gov. Gretchen Whitmer vetoed a Republican-backed bill Wednesday that would have limited her administration's unilateral powers to respond to the COVID-19 pandemic.

Sponsored by Sen. Lana Theis, R-Brighton, the proposal would have instituted a 28-day time limit on epidemic orders issued by the leader of the state's health department. Whitmer's administration has used the orders to require masks be worn in public places, close some businesses and suspend indoor dining at restaurants.

"This bill would recklessly undermine the ability of the Department of Health and Human Services to stop the spread of this pandemic, putting the lives of countless Michiganders at risk," the Democratic governor wrote in a letter to lawmakers. "Therefore, I am vetoing it."

Governor Gretchen Whitmer provideds an update on COVID-19 in Michigan on Tuesday, December 15, 2020.

The bill would have required the Legislature to approve epidemic orders if Robert Gordon, director of the state Department of Health and Human Services, wanted them to continue for longer than 28 days.

Theis has contended that the "unelected" and "unaccountable" director of the state health department shouldn't be able to issue orders and keep them in place in perpetuity.

The Senate approved the bill in a party-line 22-16 vote with Republicans in support and Democrats in opposition on Dec. 10. A week later, the House approved it in a 59-44 vote with three Democrats crossing over to join GOP members.

The legislation was the latest clash between Republican lawmakers and Whitmer's administration over Michigan's response to the COVID-19 pandemic, which has been tied to more than 12,000 deaths in the state since March.

On Oct. 2, after a lawsuit from GOP leaders, the Michigan Supreme Court struck down the 1945 law that had allowed the governor to issue emergency executive orders, like the past stay-at-home requirement, and keep them in place for lengthy periods of time without the Legislature's approval.

After that decision, Whitmer's administration began using epidemic orders to respond to the virus. Michigan's public health code allows the state health department director to issue epidemic orders that "prohibit the gathering of people for any purpose" or "establish procedures to be followed during the epidemic to insure continuation of essential public health services and enforcement of health laws."

Following the 1918 Spanish Flu Pandemic, the Legislature had granted the Department of Health and Human Services "broad power to issue orders to contain and eradicate epidemics," Whitmer wrote lawmakers in her veto letter Wednesday.

"In accordance with the advice of scientists and medical experts, they have acted swiftly to save lives by requiring the wearing of face masks and prohibiting gatherings associated with elevated risk of COVID-19 transmission," Whitmer added. "This bill would unreasonably place an unscientific and arbitrary time limit on their ability to respond not only to this pandemic, but to future health emergencies."

On Wednesday, the governor vetoed another bill that would have repealed the 1945 law that underpinned her past executive orders before being struck down by the Michigan Supreme Court.

The ruling concluded the 1945 act 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.

Sen. Tom Barrett, R-Charlotte, sponsored the bill to repeal the act. Whitmer's veto letter for the proposal said only, "I am vetoing Enrolled Senate Bill 857."

The governor vetoed another Republican proposal Wednesday that would have extended legal liability protections for health care providers and facilities that are acting support of the state's COVID-19 response. The protections would have been in place through from Oct. 29 to Feb. 14, 2021 and would not have covered those committing willful misconduct and gross negligence.

Whitmer, who has previously supported similar protections, said, "COVID-19 remains persistent and deadly. But we have learned lessons from the Spring 2020 surge and now have a road map for treating this disease.

"When a COVID-19 patient receives substandard care, they should not be deprived of their day in court."

Staff Writer Beth LeBlanc contributed.