AUTHOR’S NOTES
To provide the reader with confidence in the quality of the research, this report includes a public spreadsheet to view each state’s scores by category, as well as the statutes cited for analysis. For instance, Arizona has a “war emergency” directly related to responding to a military attack. The rules regarding this type of emergency were not included in this analysis because of its use for an extenuating circumstance.
Michigan is a special case. As of this writing, it is the only state without an emergency declaration due to COVID-19. Under analysis in this report is the 1976 Emergency Management Act (EMA). In October 2020, the Michigan Supreme Court struck down the 1945 Emergency Powers of the Governor Act (EPGA), ruling that Governor Gretchen Whitmer’s extensions of the emergency declaration without legislative approval constituted an “unlawful delegation of legislative power to the executive branch in violation of the Michigan Constitution.” In effect, the court said that the governor’s emergency authority must come from the EMA.
In response, Governor Whitmer cited a different statute which states, “If the director [of public health] determines that control of an epidemic is necessary to protect the public health, the director by emergency order may prohibit the gathering of people for any purpose…to insure continuation of essential public health services and enforcement of health laws.” This law effectively allows for the issuance of epidemic-related emergency orders without a declaration by the governor, and may also be ruled unconstitutional in the future. This report analyzed the EMA, but the current situation adds an important caveat to the potential scope of executive power in Michigan.
Another important caveat: the governor of North Carolina has the authority to “impose by declaration prohibitions and restrictions” on localities if he “determines that local control of the emergency is insufficient to assure adequate protection for lives and property.” While not necessarily the power to “create statute” as the 2019 CDC paper observed, this power is distinct from that of other governors who may merely amend regulations or suspend enforcement of statute.
By providing state-specific clarification and guidance, colleagues and partners from organizations around the country fortified the research and methods of this project; they have our immense gratitude. Maine Policy sends special thanks to friends at the Mercatus Center at George Mason University, John Locke Foundation, Beacon Center of Tennessee, Libertas Institute, Commonwealth Foundation, The Resolute Group, Cardinal Institute, Americans for Prosperity, Pelican Institute, Mass Fiscal Alliance, Washington Policy Center, Alaska Policy Forum, Mackinac Center for Public Policy, Buckeye Institute, California Policy Center, Palmetto Promise, Yankee Institute, Garden State Initiative, Oklahoma Council of Public Affairs, Wisconsin Institute for Law and Liberty, Pacific Legal Foundation, and the State Policy Network.