Whitmer declares budget parts nixing local mask orders unconstitutional, unenforceable

Michigan lawmakers cannot use the state budget to threaten the funding of local health departments that institute local school mask rules, Gov. Gretchen Whitmer said in a letter to lawmakers Wednesday. 

The governor considers this pandemic provision in the nearly $70 billion budget unconstitutional and therefore unenforceable. 

"The legislature cannot unwind the Public Health Code in a budget bill or un-appropriate funds because they take issue with the actions of local health departments," Whitmer wrote in the letter.

"Budget boilerplate that purports to prohibit state or local health officials from issuing mask and quarantine orders or to penalize local health departments for using their powers under the Public Health Code violates the Michigan Constitution." 

However, her office has determined that language in the budget that purports to ban vaccine mandates and vaccine passports by a state or local public agency is constitutional and will allow it to take effect — because her administration does not believe the language bans the type of mandates an agency would most likely pursue.  

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Republican lawmakers included several provisions to broadly restrict state or local pandemic powers using what's known as the budget bill's boilerplate language. These sections are a relatively small part of the generally massive budget bills and are not intended to enact new policies. But legislators frequently use them to highlight politically potent ideas that are ultimately doomed. 

Under the budget that passed last week with widespread bipartisan support, local health departments would lose funding if they enacted local mask mandates without the support of the local county board of commissioners. This is the portion that Whitmer and her staff determined is unenforceable and unconstitutional. 

The budget also aimed to prevent the state from mandating vaccines for state employees unless required to do so by a federal law or requirement. It specifically would withhold funding from any public agency that requires "as a condition of employment that an employee or official provide proof that he or she has received a COVID-19 vaccine." 

The portion also bans any public agency from requiring, issuing or creating a vaccine passport and prohibits an agency from subjecting "any individual to any negative employment consequence, retaliation, or retribution because of that individual's COVID-19 vaccine status." 

On Tuesday, Whitmer spokesman Bobby Leddy said these and other related provisions  "will not go into effect because these employers could still have employees get vaccinated or require testing." 

However, this budget language will go into effect. Leddy confirmed Wednesday the governor is not deeming this language unconstitutional. 

Instead, the administration essentially thinks there's a fairly large loophole: they believe the budget language does not expressly prohibit an employer from requiring either an employee get vaccinated or regularly submit to coronavirus  testing. 

The option to regularly test instead of getting vaccinated is key. So far, many workplace vaccine mandates have offered those who do not want to get vaccinated the opportunity to regularly test instead. 

"I’m grateful that this legislation preserves the ability of state and local governments to protect their employees from COVID-19," Whitmer wrote in the letter, noting that portions of the budget provides "a roadmap for public employers to ensure their employees either receive the safe and effective COVID-19 vaccine or undergo regular testing to keep their co-workers safe."

These provisions are included in budget sections for many different departments and would apply to any number of publicly funded jobs, including state correctional officers and Michigan State Police.

The administration also will allow a new health department reporting requirement to take effect. The provision requires the department to deliver a report to lawmakers within a week of issuing an epidemic order that includes an explanation of the epidemic, evidence used to determine restrictions were necessary, how the state will decide when it is appropriate to end the order and other factors. 

In a statement, Senate Majority Leader Mike Shirkey, R-Clarklake, heralded the new reporting requirements and took a few shots at the governor. 

“I am glad that this governor, who has resisted transparency for the better part of two years, will be held to clear accountability and transparency measures related to public health. That’s a big priority for the Michigan Senate," Shirkey said. 

"But moreover it is a big win for Michiganders who deserve a government that is accountable to them. It is a shame that this governor would even contemplate ignoring any part of this budget that passed with overwhelming bipartisan support.”

House Appropriations Committee Chairman Thomas Albert, R-Lowell, said the budget is proof a politically divided government can work together and achieve positive results. However, he said he thought it was important to clear up confusion on what is and is not enforceable. 

"There has been confusion and miscommunication about what the governor has deemed enforceable and unenforceable related to COVID-19 vaccine mandates, and I want to help set the record straight. Language preventing state and local governments from mandating vaccines as a condition for receiving government services or government employment is enforceable and remains in the budget," Albert said. 

"We also protect the rights of college students by requiring universities and community colleges that implement COVID vaccine mandates to have clear, obtainable exemptions."  

He also said he was saddened but not surprised by Whitmer's determination that the school mask provisions were unconstitutional.

Whitmer has repeatedly said the state is not currently considering instituting a vaccine work requirement, mask mandates or any other broad pandemic orders. However, Whitmer initially declined to say whether she supported the GOP COVID-19 proposals as presented in the budget.

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Speaking last week on Mackinac Island, she said she was pleased with the overall budget but declined to go into detail when asked about the pandemic portions. 

After several days of questions, Whitmer's office put out a statement indicating broadly that there were some parts of the budget that appeared unconstitutional. 

"The state of Michigan will not withhold funding from local health departments for implementing universal mask policies or quarantine protocols in local schools that are designed to keep students safe so they can continue learning in person," Leddy said on Friday. 

This came too little, too late for at least one local health department. The Dickinson-Iron District Health Department in the Upper Peninsula rescinded its local mask ordinance last week, pointing to the specific language in the budget bill. 

“It has been a very difficult decision to be forced to choose between what is best for the public’s current health situation versus the future of our essential public health programs that will hopefully continue to serve our community for years to come," department health officer Daren Deyaert said last week. 

The confusion is indicative of a broader concern shared by many local health leaders: They want Whitmer and the health department to enact a statewide mask mandate. 

Whitmer and health department Director Elizabeth Hertel have encouraged local mask mandates but have not issued a statewide order.

The U.S. Centers for Disease Control and Prevention recently released a pair of additional studies showing the coronavirus is more likely to spread in schools that do not broadly require masks. 

The governor has line-item veto authority that can be used on budget bills, but she cannot use it to strip out boilerplate language. Instead, Whitmer and past governors have determined boilerplate that aims to enact new policy violates the state Constitution and is therefore unenforceable. 

In theory, anyone could challenge this interpretation in court. But in general, lawmakers cannot enact broad policy unrelated to the budget through boilerplate language. 

Contact Dave Boucher: dboucher@freepress.com or 313-938-4591. Follow him on Twitter @Dave_Boucher1.