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MDHHS emergency orders on stronger legal footing than Governor’s, according to expert


At least one Michigan legal expert says the emergency orders being issued by the Michigan Department of Health and Human Services stand on firmer legal footing than the Governors.

After the Governor’s Emergency orders were struck down last week similar orders around social distancing and mask-wearing were re-issued through the Michigan Department of Health and Human Services.

Michigan Republicans have voiced frustration with the reissued orders saying that they seem “like another overreach.”

Peter Jacobson is Professor Emeritus of Health Law and Policy at the University of Michigan. He said the Michigan Public Health Code gives MDHHS broad authority to enact health orders.

“These are ordinary powers that every public health agency across the country has, that they need to protect the public health,” he said

Jacobson said so long as the Health Department doesn’t try to re-enact all of the Governor’s emergency orders - and can show that the orders are necessary to protect public health, state Republicans will have a difficult time overturning them.

“The Governor can commandeer agencies to try and take action. The Health Department doesn’t have those authorities and shouldn’t try to mimic it. They should try to say what is the best strategy for public health given the science.”

Jacobson said courts should avoid undermining the authority of the Department of Health and Human Services during a pandemic.

“It would be a serious disruption if the court were to second guess the public health authority on its core mission of limiting the pandemic.”

The Governor’s other emergency orders, such as expanding unemployment, will require action from the legislature.

Currently, the mask and social distancing orders issued by the Department is set to expire on October 30th.

Governor Whitmer has argued her executive orders also don’t expire until October 30th, but she has asked the state supreme court for clear guidance on when that happens.

Lt. Governor Garlin Gilchrist sent a letter to Republican leaders on Wednesday urging them to take up a mask mandate.

“I am making this appeal to you as President of the Michigan Senate, as the father of young children, and as someone who has seen first hand the devastation caused by this virus,” Gilchrist wrote.

“I acknowledge that mask-wearing has become politically charged, but I am calling on you to join me in putting politics aside on this issue.”

In a press call on Friday, Senate Majority Leader Mike Shirkey indicated he was not interested in taking up a mask mandate.