Stay Home or State of Emergency? Clearing Up Executive Order Confusion

Update: Gov. Whitmer extended the stay at home order to May 28, 2020

If you’re confused about the projected end date of Michigan’s “stay at home” orders, you’re not alone. A flurry of government activity caused some controversy at the State Capital and left many people scratching their heads.

Despite conflicting media reports, there is no change to the end of the “Stay Home, Stay Safe” order, which remains May 15.

Last week Gov. Whitmer issued three new orders that ended the original State of Emergency and State of Disaster (set to expire April 30) and re-issued the order through May 28. Extending the State of Emergency would give the governor the ability to speed up state agency assistance to communities in need. However, the orders are running into opposition and could ultimately be decided by the court.

No doubt, there will still be some restrictions once the order ends, but the governor appears to be committed to an incremental and careful reopening of our state.  She has the support of the health care community in taking this approach.

Sean Gehle, Vice President of Advocacy for Trinity Health Michigan, provides more background on the recent activities in Lansing:

  1. What is a “Declaration of Emergency and Disaster? A State of Emergency means an E.O. or proclamation that activates the emergency response and recovery aspects of the state, local and interjurisdictional emergency operations plans applicable to the counties or municipalities affected.  Emergency is defined as any occasion or instance in which the Governor determines state assistance is needed to supplement local efforts and capabilities to save lives, protect property and public health and safety to less or avert the threat of a catastrophe in any part of the state. The Governor declares a State of Emergency when it is believed a disaster has occurred or may be imminent, and is severe enough to require state aid to supplement local resources in preventing or alleviating damages, loss, hardship or suffering.
  2. When was it declared in Michigan and what does it authorize the Governor to do?  A State of Emergency was first issued in Michigan on March 10. This declaration authorizes the governor to speed state agency assistance to communities in need. It enables her to make resources immediately available to rescue, evacuate, shelter, provide essential commodities like heating fuel and food.
  3. What happened to bring this issue back into the news?  State of Emergency and State of Disaster expired on April 30.  There is a disagreement in the Capital whether the Governor can unilaterally extend State of Emergency and State of Disaster,  or if she needs the approval of the Legislature. Two different state statutes are being referenced; one that allows the Governor to unilaterally extend and the other that requires Legislative approval to extend beyond 28 days. The Governor moved forward with extending her State of Emergency and State of Disaster. Legal challenges are expected.
  4. What is an executive order (EO) and how is this different from the Declaration of Emergency?  
    The EO is a specific order that the Governor issues on a certain issue and the Declaration of Emergency gives her broader authority to issues EOs. The Michigan Constitution of 1963 vests the executive power of the state in the Governor. That power can be exercised formally by executive order. Executive orders may reorganize agencies within the executive branch of state government, reassign functions among executive branch agencies, create temporary agencies, establish an advisory body, commission, or task force, proclaim or end an emergency, or reduce expenditures authorized by appropriations. Once signed by the Governor, executive orders are filed with the Secretary of State, where the orders are sealed and retained by the Office of the Great Seal.
  5. Does extending the Declaration of Emergency to the end of May mean the “Stay at Home” order is also going to be extended? The Governor has reaffirmed that the current Stay at Home order remains until May 15.
  6. Could she decide to extend the Stay at Home order beyond May 15? Yes, she could but, right now, her discussions lead many of us to believe that she will look for measured ways to gradually re-open more services on May 15 or earlier. For example E.O. 2020-70 opens up construction services more broadly on May 7.