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  • Writer's pictureRobert Lusk

Michigan Court of Appeals Strikes Down HHS COVID Orders

Michigan’s Court of Appeals addressed perhaps the last significant legal issue related to the COVID-19 pandemic in T & V Associates, Inc. d/b/a River Crest Catering, Case No. 361727 (June 29, 2023). Readers may recall that, a year into the pandemic, Michigan’s Supreme Court struck down the Governor’s authority to issue COVID-related executive orders pursuant to the Emergency Management Act of 1976 (EMA) and the Emergency Powers of the Governor Act of 1945 (EPGA). Shortly afterward, and apparently because she disagreed with the Supreme Court’s decision, the Governor simply directed her appointee, the Director of the Department of Health and Human Services (HHS), to issue the same restrictions pursuant to Section 2253 of the Public Health Code, MCL 333.2253. Technically, the Governor had this option because the Supreme Court’s decision had not addressed Section 2253.


Section 2253 provides, in pertinent part:


…[I]f the director [of HHS] determines that control of an epidemic is necessary to protect the public health, the director by emergency order may make a declaration of that determination and may within that emergency order prohibit the gathering of people for any purpose and establish procedures to be followed during the epidemic to ensure continuation of essential public health services and enforcement of health laws. ...


MCL 333.2253(1).


Plaintiff, a caterer who business was adversely affected by HHS order, alleged Section 2253 was an unconstitutional delegation of the legislature’s power to the executive branch in the person of the Director of HHS.


Addressing this question, the Court noted, at the outset, Michigan’s constitution separated the executive, from the legislative, from the judicial branches of government. Additionally, Michigan’s constitution prohibited the three branches of the government from exercising each other’s powers. Const 1963, art 3, § 2. Thus, it is unconstitutional for the legislature to delegate its powers to the executive branch or for the judiciary to delegate is powers to the legislative branch, etc., without, at the very least, an intelligible principle to guide the delegee’s use of the delegated discretion. Could such an intelligible principle be derived from Section 2253? The Court thought not.


Supporting its conclusion, the Court made several observations, including that Section 2253 did not define its most important term, “epidemic.” The Court noted the government had declared a variety of things to be epidemics, including obesity, tobacco use, and illiteracy. Could these “epidemics” trigger the Director of HHS’s authority under Section 2253? If so, did the epidemic have to be in Michigan, or could it be in another State? Section 2253 did not say. For how long did the Director of HHS have the authority to manage the lives of Michigan citizens? Again, Section 2253 did not say. For these reasons and others, the Court concluded Section 2253 was not a constitutional delegation of the legislature’s power to the executive branch. Put differently, the legislature did not have the authority to delegate its powers over the health and welfare of Michigan citizens – to tell them where they could go, what they could do, and how they could do it – to the executive branch. A branch whose duty is to enforce the laws, not create them.


In all fairness to the Governor, the legislative branch was AWOL during the COVID-19 pandemic. In fact, the legislatures, Michigan and federal, appeared afraid to make any decision about the pandemic, caught between the fear of being perceived not to care about the spread of the disease and the fear of being held responsible for any inconvenience caused by restrictions that might curtail the contagion. Better, they seemed to conclude, to sit on the sidelines and play to the crowd. The Governor can hardly be blamed for stepping into the breach. However, having been informed by the Supreme Court that her interventions were unconstitutional, it becomes difficult to understand her decision to direct a subordinate to do essentially the same thing, except as bald defiance of a Supreme Court decision because she thought she knew better. This is obviously a poor way to preserve our constitution, liberty, or democratic institutions. And the fault falls as much on the legislature as the Governor.


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