Is the extended State of Emergency and State of Disaster in Michigan legal?

Question

I live in Michigan and we've been under a state of emergency since March 10th, 2020, as declared in Executive Order 2020-4. That order cited two statues as authority for this action: PA 302 - Emergency Powers of Governor and PA 390 - Emergency Management Act. On April 1st that was expanded to include a state of disaster in Executive Order 2020-33.

The challenge here (and I'll go into this more later) is that PA 302 and 390 seem to have some overlapping and conflicting portions.

PA 302 doesn't place any specific time restrictions on the length of these declarations, while PA 390, Section 30.403 states that:

The state of emergency shall continue until the governor finds that the threat or danger has passed, the emergency has been dealt with to the extent that emergency conditions no longer exist, or until the declared state of emergency has been in effect for 28 days. After 28 days, the governor shall issue an executive order or proclamation declaring the state of emergency terminated, unless a request by the governor for an extension of the state of emergency for a specific number of days is approved by resolution of both houses of the legislature.

On April 7th (28 days after the initial state of emergency declaration) Michigan's legislators voted to extend the states of emergency and disaster for 23 days (until April 30th).

On April 30th Michigan legislators decided to not extend the state of emergency. The governor extended them nonetheless, issues 3 new executive orders (source):

"Executive Order 2020-67, which clarifies that a state of emergency remains in effect under the Emergency Powers of the Governor Act of 1945. The order is effective immediately and continues through May 28, 2020 at 11:59pm. The governor will evaluate the continuing need for this order prior to its expiration, and if she determines that an emergency no longer exists, will terminate or extend the state of emergency declared in this order."

"Executive Order 2020-68, which declares a state of emergency and a state of disaster across the State of Michigan under the Emergency Management Act of 1976. The state of emergency and state of disaster declared by this order will be effective through May 28, 2020 at 11:59pm, and the governor will evaluate the continuing need for the order prior to its expiration, terminate the states of emergency and disaster if the threat or danger has passed."

"Executive Order 2020-66, which terminates the existing state of emergency and disaster declarations issued under the Emergency Management Act in Executive Order 2020-33."

That's confusing to me - EO 2020-66 terminates the existing states of emergency/disaster while EO 2020-67 clarifies that it's still in effect.

I've also been trying to understand how these (seemingly) conflicting statues (PA 302 and 390) work together. I can see that PA 390, Section 30.417 specifically mentions how it doesn't limit PA 302 in some capacity (emphasis added):

This act shall not be construed to do any of the following [...] (d) Limit, modify, or abridge the authority of the governor to proclaim a state of emergency pursuant to Act No. 302 of the Public Acts of 1945, being sections 10.31 to 10.33 of the Michigan Compiled Laws, or exercise any other powers vested in him or her under the state constitution of 1963, statutes, or common law of this state independent of, or in conjunction with, this act.

But that seems to impact the proclamation, not duration, of the states of emergency or disaster.

So back to my question - is it legal to pull from the authority of PA 302 while somehow sidestepping PA 390? Or is that the point of 30.417 - does that clause prevent the duration restrictions in PA 390 from amending anything in PA 302? In that case I would like to know what the value of those restrictions in PA 390 is.

Answer 1

The situation is that Executive Order 2020-33 is no more, and a new order, 2020-68 exists. The old orders to stay home are now copied under this order, but it may be necessary for her to re-issue (a subset of) the orders so that they are pursuant to #68 and not #33 (live by the technicality, die by the technicality). If she does not do that quickly, I expect there to be legal challenges. The law (30-403) doesn't say that orders issued pursuant to a declaration of a state of disaster expire when the authorizing declaration expires, but one can reasonably infer that that is what the legislature had in mind when this law was passed. But that is a matter for the courts to decide. Deference to the executive, which is the usual way that courts operate, would favor an interpretation where saying "All previous orders that rested on Executive Order 2020-33 now rest on this order" counts as re-issuing the same orders with a new number in the text.

The law does not say that the circumstances authorizing an emergency order have to be completely different. Perhaps the legislature will revise the law in the future, but it is what it is right now.