Nessel won’t enforce Michigan Gov. Whitmer’s COVID orders after court ruling

LANSING — Michigan Attorney General Dana Nessel announced Sunday she will no longer enforce Gov. Gretchen Whitmer's executive orders on COVID-19 after the state's highest court deemed an emergency powers law unconstitutional. 

But Nessel's office left open the possibility for local enforcement and said later Sunday it will enforce separate epidemic orders from Michigan Department of Health and Human Services Director Robert Gordon, some of which reinforce Whitmer's executive actions. 

Nessel’s decision cast further uncertainty over the administration’s active response to COVID-19 and doubt on the legitimacy of Whitmer's orders since late April, which a conservative majority on the Michigan Supreme Court said Friday "now lack any basis under Michigan law."

• Michigan coronavirus unemployment, map, curve, COVID-19 updates
• Dashboard: Michigan coronavirus testing numbers, trends, COVID-19 data
• Michigan Supreme Court rules Whitmer lacks COVID-19 emergency powers
• GOP leader: No mask mandates, Michigan needs to learn to live with coronavirus

“In light of the Supreme Court’s decision on Friday, the Attorney General will no longer enforce the governor’s executive orders through criminal prosecution," Nessel spokesperson Ryan Jarvi said in a statement shared with Bridge Michigan.  

"However, her decision is not binding on other law enforcement agencies or state departments with independent enforcement authority. 

“It’s her fervent hope that people continue to abide by the measures that Gov. Whitmer put in place — like wearing face masks, adhering to social distancing requirements and staying home when sick — since they’ve proven effective at saving lives." 

Whitmer, who like Nessel is a Democrat, has claimed Friday's Supreme Court decision does not take effect for 21 days. Her office on Sunday reiterated the governor’s belief that “many of the responsive measures she has put in place to control the spread of the virus will continue under alternative sources of authority that were not at issue in the court’s ruling.”

The Supreme Court ruling "raises several legal questions that we are still reviewing," Whitmer spokesperson Tiffany Brown said later Sunday in a statement. "While we are moving swiftly, this transition will take time."

Brown promised an additional explanation in coming days. 

"Make no mistake, [Whitmer] will continue using every tool at her disposal to keep Michigan families, frontline workers, and small businesses safe from this deadly virus," she said.

Enforcement of the Whitmer's orders has been scattershot throughout the pandemic. Even before Friday’s ruling, Nessel has said local police are best equipped to handle violators, while a few police agencies have publicly refused to enforce the orders.

Besides Whitmer’s orders, Michigan Department of Health and Human Services Director Robert Gordon has also  issued separate epidemic orders reinforcing the governor’s mask mandate, workplace safety rules and other regulations. 

Violations of those epidemic orders, which were not challenged and appear to remain in effect, are generally punishable by civil fines of up to $1,000.

Nessel’s decision follows a tweet from her personal account Friday that said she respects the court’s ruling but “fear[s] for the future of our state and for all our residents.”

“If it weren’t for the governor’s actions, countless more of our friends, family and neighbors would have been lost” to the coronavirus, the Sunday statement from Nessel’s office read.

“We can respect both the court’s decision and the advice of medical experts by continuing with these important measures voluntarily.” 

Whitmer has not conducted any interviews with the Michigan media since Friday's dramatic Supreme Court ruling, but she appeared on CNN Sunday morning. 

Host Jake Tapper did not ask the governor about the opinion, but she brought it up while discussing ongoing efforts to fight the virus, noting the court ruled the same day President Donald Trump was hospitalized with COVID-19. 

"The sad irony is that on the day the president was admitted to the hospital with the very virus he called a hoax, the Supreme Court in Michigan undermined my emergency rule, my emergency orders that I've had to enact... to save lives," Whitmer said. 

Tapper noted that Trump did not call the virus itself a hoax but has "called Democratic and media concerns about it a hoax,” which he also called false. Whitmer thanked him for the “clarifying that” and said Trump “called all the concerns, all the effort - he undermined that. He ridiculed us, and he ridiculed the press."

The court’s decision casts into doubt 123 emergency orders Whitmer has issued since late April, after the Legislature refused to extend Michigan’s state of emergency.

During that time, Michigan has had just over 80,400 additional confirmed cases of the coronavirus, or 64 percent of all the cases since the pandemic began, and 2,528 deaths, or 37 percent of the nearly 6,800 COVID-19 deaths recorded.

The court’s order, though, does not appear to impact orders from local health departments or prevent them from issuing new ones. That could create a patchwork of regulations statewide.

Since the court ruling, health officials in Oakland and Ingham counties issued orders requiring face masks in public, while Macomb County Executive Mark Hackel told the Macomb Daily he wouldn't require masks. 

Ingham County Health Official Linda S. Vail also issued orders limiting the size of outdoor and indoor gatherings, including a 125-person cap at restaurants (or 50 percent of normal capacity) and requiring employee health screenings — safeguards Whitmer had also required in her executive orders. Oakland County may soon impose similar limits, Stafford said.

“Health and science experts agree that facial coverings are critical to controlling the virus,” Oakland County Executive David Coulter, a Democrat who is up for re-election, said in a statement. 

“We have come too far to backslide now especially as we want to get kids back to school and our economy moving again. In Oakland County masks will continue to be mandatory by order of our health experts. I am confident that our residents and businesses will continue to keep each other safe and protected.”

Leaders of Michigan's Republican-led Legislature say Friday's Supreme Court ruling means Whitmer will now need to work with them to craft a bipartisan COVID-19 response plan. 

Senate Majority Leader Mike Shirkey on Saturday told Bridge the GOP may codify some Whitmer orders but the state mask mandate and various business regulations are likely on the chopping block.

Dr. Robert Redfield, the director of the U.S. Centers for Disease Control and Prevention, has called masks “the most important powerful public health tool we have” we have to fight COVID-19. 

Shirkey, R-Clarklake, is encouraging the public to wear masks, socially distance and wash hands, but noted he doubts there’s “any appetite” among Republicans for a mandate.

“We’re moving now from an era or a time when the focus was on mandating, dictating and frankly in some cases threatening, to more of an informing and inspiring and encouraging and loving and trusting people to do the right thing” approach, he said.

Asked about COVID outbreaks, Shirkey said "freedom is messy."

He said lawmakers need to move away from a "lingering notion that we could, by restricting everything, basically ignore the fact that the COVID exists and delay everything for perpetuity. The virus ultimately was going to win, it was just going to take a longer time."

Democrats ridiculed Shirkey's comments. 

"I have been flabbergasted by the defeatist and deadly attitude of Republican leaders from the President on down to throw hands up and say, 'It is what it is,'" Sen. Mallory McMorrow, D-Royal Oak, wrote on Twitter.

"We need to prevent as many fatalities as possible until there's a vaccine or treatment."