LANSING, Michigan — Gov. Gretchen Whitmer said on NBC’s “Meet the Press” Sunday the recent surge in coronavirus cases that has made Michigan a national outlier is partly the result of a Michigan Supreme Court ruling that struck down a key law she has used to fight the pandemic.
It was a departure from statements Whitmer made immediately following the October ruling, when she said she mostly retained powers related to public health measures but would require legislative approval for other measures, such as extending unemployment insurance benefits and allowing local governments to hold their public meetings remotely. Also, Whitmer in recent months has eased coronavirus restrictions voluntarily — not in response to court rulings — despite rising case numbers.
“I have been sued by my Legislature, I have lost in a Republican-controlled (Michigan) Supreme Court, and I don’t have all of the exact same tools,” Whitmer said after host Chuck Todd played her clips of previous statements she had made that Todd suggested she has changed her tune about following the science to address the pandemic.
Whitmer on Sunday did say Michigan still has “strong measures to keep people safe,” including a face mask requirement, and is “still doing what we can.” She also cited the success Michigan had early on during the pandemic, when she imposed strict measures on business and other activities, which she said resulted in “vast reservoirs of people who don’t have antibodies,” who are susceptible to highly contagious variants now circulating.
Fauci, CDC urge containment measures
Immediately before Whitmer appeared on the Sunday show, Todd interviewed Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, who said the Biden administration was not surging more vaccines to Michigan, as Whitmer has requested, because when a state is in the middle of a surge, as Michigan, is, “the best thing to do is try to contain it,” and “really to shut down things much more so.”
Officials with the Centers for Disease Control have made similar statements, urging Whitmer to impose additional restrictions.
Whitmer, in resisting calls to impose new restrictions during the Michigan surge, has until now mostly cited her strategy of combatting the surge by massively increasing vaccinations and urging, but not ordering, people to wear masks, observe social distancing, and take other measures to prevent virus spread. Under a Whitmer directive, all Michigan residents 16 and up are eligible to be vaccinated, as of April 5.
Whitmer has pointed not to a lack of the necessary powers, but to fatigue among Michigan residents with her use of those powers and concerns about compliance. And she has voluntarily eased restrictions in Michigan in recent months, despite rising case numbers and concerns about coronavirus variants that are not only more contagious but in some cases more deadly.
“I am working with a smaller amount of tools at my disposal,” Whitmer said.
Asked by Todd whether that means that if she had the power to do more, she would do more, Whitmer said: “At the end of the day, this is going to come down to whether or not everyone does their part.”
Emergency powers struck down
In early October, the Michigan Supreme Court struck down as unconstitutional the Emergency Powers of Governor Act of 1945, following a lawsuit brought by the GOP-controlled Legislature.
At the time, the 1945 law was the main tool Whitmer used to issue emergency orders to address the pandemic. At the time of the court ruling, Whitmer said that without the law she generally retained powers related to public health measures but would now need approval of the Legislature for other measures, such as extending unemployment insurance benefits and allowing local governments to hold their public meetings remotely.
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Her administration immediately issued new orders under the Public Health Code — a separate state law unaffected by the court ruling — which replicated mask requirements, restrictions on gathering sizes and restaurant capacity, which were among the main features of the controls in place at that time.
“I will continue to use every tool at my disposal to protect the people of Michigan from the spread of COVID-19,” Whitmer said Oct. 22, after the court’s ruling.
In November, with case numbers rising in Michigan and around the country, Whitmer used those powers to impose a temporary ban on indoor dining, indoor contact sports, in-person high school classes and any operations at venues such as movie theaters or bowling alleys. Whitmer later said those restrictions saved lives.
In mid-January, Whitmer announced that indoor fitness classes and non-contact sports could resume, and on Jan. 22, Whitmer announced that indoor dining could resume Feb. 1, at 25% capacity and with a 10 p.m. curfew.
And in early February, after it was known that the highly contagious variants were circulating in Michigan, but with case numbers declining for close to one month, Whitmer announced she was lifting the moratorium on indoor contact sports, amid pressure from Republicans and advocates for high school sports. Despite strict testing requirements, those sports have since been linked to many outbreaks.
In early March, Whitmer further eased indoor dining restrictions, allowing 50% capacity, as well as allowing increased traffic at retail stores and larger private gatherings. That order came despite a recent increase in Michigan’s weekly case numbers and growing concerns about highly contagious variants.
Michigan’s strategy of vaccinating its way out of the surge received a major setback April 13, when the Centers for Disease Control and the U.S. Food and Drug Administration recommended a pause in the use of Johnson & Johnson’s “one and done” vaccine, which by requiring only a single dose is the most efficient way of quickly stepping up vaccination rates. There are signs that the announced pause has also lowered confidence in vaccinations more broadly.
Senate Majority Leader Mike Shirkey, R-Clarklake, and House Speaker Jason Wentworth, R-Farwell, who were highly critical of Whitmer’s early attempts to control the virus, have both praised the governor’s decision to hold off on new restrictions during the surge.
Though Republican-nominated justices held a 4-3 majority on the Michigan Supreme Court in October, the balance shifted as a result of the November election. Democratic-nominated justices now hold a 4-3 edge.
It was Whitmer’s fourth appearance on “Meet the Press,” the most influential of the Sunday public affairs TV programs, since she took office in 2019. Whitmer appeared in March and again in April 2020, during the first wave of the coronavirus pandemic that hit Detroit and other parts of Michigan especially hard, and then in October of last year, soon after federal and state officials brought charges in what they say was a foiled plot to kidnap her by men who opposed restrictions she imposed to address the pandemic.