In The News

In The News

Friday, May 1, 2020

Sharing the Actual Executive Orders and Legislation Passed on April 30 - and A Prediction

By Michael Nichols
Categories: Michael J. Nichols

We have 4 new executive orders in light of the legislature’s resolution to refuse to grant a continuing state of disaster/state of emergency. Remember, the earlier-enacted Governors Emergency Powers Act of 1945 is more generally addressed to a State of Emergency that gives the executive somewhat generalized police powers and that is important.

The Emergency Management Act of 1976 meanwhile, addresses a disaster and confers upon the Executive more specific powers: in particular the authority to engage in rule-making for administrative rules that interpret and implement statutes.

Here are the new executive orders

EO 66: Accordingly, acting under the Michigan Constitution of 1963 and Michigan law, I order the following:
1. The state of emergency declared under the Emergency Management Act in Executive Order 2020-33 is terminated.
2. The state of disaster declared under the Emergency Management Act in Executive Order 2020-33 is terminated.
Given under my hand and the Great Seal of the State of Michigan.

EO 67: Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:
1. A state of emergency remains declared across the State of Michigan under the Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31 et seq.
2. This order is effective immediately and continues through May 28, 2020 at 11:59 pm. 3. I will evaluate the continuing need for this order prior to its expiration.
3. Executive Order 2020-33 is rescinded and replaced. All previous orders that rested on Executive Order 2020-33 now rest on this order.
Given under my hand and the Great Seal of the State of Michigan.

EO 68: Acting under the Michigan Constitution of 1963 and Michigan law:
1. I now declare a state of emergency and a state of disaster across the State of Michigan under the Emergency Management Act.
2. The Emergency Management and Homeland Security Division of the Department of State Police must coordinate and maximize all state efforts that may be activated to state service to assist local governments and officials and may call upon all state departments to utilize available resources to assist.
3. This order is effective immediately and continues through May 28, 2020 at 11:59 pm. 4. I will evaluate the continuing need for this order prior to its expiration. 5. All previous orders that rested on Executive Order 2020-33 now rest on this order.
Given under my hand and the Great Seal of the State of Michigan.
All dated April 30th, 2020.

Then there is EO 2020-69, which is a redux of EO 2020-43, which was a redux of EO 2020-20, issued back on March 23rd. So what the heck can we do and not do?

It seems as if we are back to the state of the state on April 24, 2020, when she issued EO 2020-59, (which rescinded the more restrictive and controversial EO 2020-42, because she brought all prior orders not otherwise rescinded under the “new” EO’s 66-69. So as far as I can tell – the main guidance for most average folks is here at EO 2020-42:

http://www.legislature.mi.gov/documents/2019-2020/executiveorder/pdf/2020-EO-59.pdf

You can buy seeds at Meijer or Walmart if you have to go out to buy necessities, but otherwise stay home. So what is her authority to do this? Remember talking about the Supreme Court case, Jacobsen v Massachusetts that endorsed the ability of a state to require vaccinations for healthy individuals due to an epidemic?

This is from a Michigan case that was found by my friend and colleague, attorney John Lewis in Big Rapids. Our Michigan Supreme Court held the following in a case in which a public health order required Healthy kids to get vaccinated for smallpox, referencing the history of judicial interpretations of executive orders in times of crisis:

“They are not all in accord and in some instances are not reconcilable. There is, however, a very marked trend in them in one direction, that which upholds the right of the state, in the exercise of its police power and in the interest of the public health, to enact such laws, such rules and regulations, and will prevent the spread of this dread disease. The power of the state to require vaccination in case the disease was present in a community was upheld in Jacobson v. Massachusetts, 197 U. S. 11, 25 Sup. Ct. 358, 49 L. Ed. 643, 3 Ann. Cas. 765,” People Ex Rel Hill v Board of Ed of City of Lansing, 224 Mich 388, 1923

The Hill case came before the statutes that we have all been wrestling to interpret were enacted. The governor cannot just continue the disaster declaration. She can continue the emergency declaration under MCL 10.31-10.33. So, the question becomes the extent to which she can use her “broad police power” to cabin our rights to move about, exercise our constitutional rights and otherwise constrain our daily lives. I have no doubt that after the resolutions to sue her, SR 0114 of 2020 and HR 0250 of 2020 – here:

http://www.legislature.mi.gov/documents/2019-2020/resolutionadopted/House/pdf/2020-HAR-0250.pdf

http://www.legislature.mi.gov/documents/2019-2020/resolutionadopted/Senate/pdf/2020-SAR-0114.pdf

So, it will be up to the courts to decide. I predict that so long as the orders are only as restrictive as necessary to be “reasonably related” to protect life during the pandemic, the courts will continue to side with the governor. The good news? We are getting close to the end of this phase.

Need a Lawyer?

Get an online consultation or call 517-432-9000

Online Consultation »

Do the Medicines You Take Criminalize Your Driving?

Family Law encompasses a broad range of issues that occur between family members. Our team, led by Colline Cheltenham, can help you in all of these areas...

More »

Personal Injury / Traumatic Brain Injury Experts

Traumatic Brain Injury (TBI) is one of the most frightening and serious forms of injury...

More »

Criminal Defense

We are skilled, experienced and committed to resuts in both the serious and misdemenor criminal case

Personal Injury

We have successfully represented clients with serious and traumatic injuries

What our clients are saying

more testimonials »

Peer Recognition

Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

Mike Nichols is recognized by his peers in Michigan as a “SuperLawyer” in DUI/Criminal Defense. Nichols has also been asked to speak at conferences by groups such as the NCDD; Various Bar Associations in other states.