Whitmer's office: Ban on orders requiring masks for kids unconstitutional

Craig Mauger
The Detroit News

Gov. Gretchen Whitmer's office plans to a strike a controversial provision embedded in Michigan's new state budget that would ban health orders requiring kids to wear face masks.

Whitmer's spokesman Bobby Leddy labeled the language "dangerous" in a Friday afternoon statement, adding that it's unconstitutional and "the governor will declare it unenforceable."

"The state of Michigan will not withhold funding from local health departments for implementing universal mask policies or quarantine protocols in local schools that are designed to keep students safe so they can continue learning in person," Leddy added.

Gov. Gretchen Whitmer speaks during a press conference at the Farwell Recreation Center in Detroit on Monday, Aug. 16, 2021. Whitmer held the press conference to announce a proposal to strengthen public safety using resources from President Biden’s American Rescue Plan.

The so-called "boilerplate" language inserted in the budget by Republican legislative leaders stipulated that local health officers cannot "enforce any orders or other directives that require an individual in this state who is under the age of 18 to wear a face mask or face covering." The orders are intended to fight the spread of COVID-19. 

Multiple county health officials in Michigan have imposed orders that require K-12 students to wear masks in schools, including those in Oakland and Wayne counties — the state's two most populous counties. Republicans have opposed the mandates, arguing that people should make decisions for themselves.

The policy on mask orders was one of a series of similar measures attached to the budget by GOP lawmakers who control the state Legislature. Republican leaders say some of the provisions, including a ban on vaccine mandates for government employees, had been negotiated with Whitmer's administration ahead of time, meaning they expected them to remain after her administration examined them.

Some Republican lawmakers admitted that they didn't know whether Whitmer would allow the prohibition on mask requirements for kids.

Sen. Tom Barrett, R-Charlotte, posted on Facebook earlier in the week that he championed the policy against face mask mandates. The decision should be for parents to make "without interference from the government," Barrett wrote.

"While she has signaled that she will not enforce this provision, she is not allowed to simply ignore the plain language of the law I have attached the section here for you to read for yourself," Barrett posted. "This fight isn’t over yet, but this is a great step in the right direction."

Traditionally, the governor has had the ability to strike language attached to the budget if the administration deems it unconstitutional.

Before Whitmer's announced the decision Friday, the Dickinson-Iron District Health Department rescinded its mask order for children in kindergarten through sixth grade, citing the state budget language.

"While public health still feels this is the best option, the department was informed on Wednesday, September 22, 2021, of language in fiscal year 2022 state budget (Senate Bill 82) that jeopardizes future health department funding," the department said in a statement. "The bill has been approved, and Governor Whitmer has indicated she will sign the bill early next week."

While Whitmer is expected to sign the budget bill next week, it's unclear how many of the "boilerplate" provisions will be blocked.

Other policies include a requirement that the state health director provide additional information when issuing epidemic orders to respond to the COVID-19 pandemic and a stipulation that universities offer exemptions for vaccine mandates on campus.