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Probable Issue: Covid-19 Emergency Authority

The COVID-19 pandemic triggered scenarios in which government at various levels exercised special emergency authorities. Image credit: Getty Images Download original

In ordinary situations, no one branch of government or single official can unilaterally create laws. The legislative process allows for public involvement as bills move through committees, the Michigan House of Representatives and Senate and ultimately to the governor. Once signed into law, the Michigan Administrative Procedures Act (APA) then provides for the ways in which agencies can promulgate, including impact statements, public comment and review. 

The COVID-19 pandemic triggered scenarios in which government at various levels exercised special emergency authorities. The governor initially attempted to use executive orders issued under several public acts that were ultimately found to be unconstitutional. However, state agencies were able to utilize authorities granted to them during a public health emergency to reissue many of those restrictions, including utilizing provisions in the Michigan APA to create special emergency rules valid for up to one year and not subject to the typical notice and review. Some agencies have also started establishing permanent rules related to COVID-19, many without specific sunsets related to virus spread or vaccination.

Thoughts to Consider

  • How well has state government balanced fairness and transparency with quick action during the COVID-19 pandemic?
  • Should the governor or state agencies be able to create temporary rules in order to keep the public safe without public input or approval of the legislature?
  • Should “temporary” and “emergency” be defined? Should this be limited to “pandemic,” “epidemic” and/or other specified periods?
  • Have certain COVID-19 emergency authorities or exemptions been particularly helpful or harmful to agriculture?

Policy References

MFB Policy #68 Regulatory Reform and Reduction

MFB Policy #69 Streamlining Michigan Government

AFBF Policy #102 The Constitution (see 1 and 6)

AFBF Policy #104 Executive Branch

AFBF Policy #106 Judicial Branch

AFBF Policy #107 Legislative Branch

AFBF Policy #110 Regulatory Review and Reform (see 2)

Additional Resources

MDHHS Epidemic Orders

MIOSHA Emergency Rules

MDARD Migrant Labor Housing Emergency Rules

Administrative Procedures Act of 1969 MCL 24.248

Michigan Occupational Safety and Health Act MCL 408.1069

Date Posted: September 14, 2021
Media Contacts
Ben Tirrell headshot

Ben Tirrell

Legislative Counsel 517-679-5924 [email protected]
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