DETROIT — Michigan lawmakers cannot use the state budget to threaten the funding of local health departments that institute local school mask rules or prevent the state from requiring employees be vaccinated against COVID-19, a spokesman for Gov. Gretchen Whitmer said late Tuesday.
The governor's office considers these and other pandemic portions of the $70 billion budget unconstitutional and therefore unenforceable, spokesman Bobby Leddy said hours before Whitmer is set to sign the overall budget into law.
“After reviewing the final budget, the governor is expected to deem a number of provisions unconstitutional that are aimed at restricting our state’s public health measures," Leddy said.
"These dangerous, anti-public health boilerplate provisions that seek to tie the hands of local health departments and municipalities will not be enforced as part of the final budget because they violated various aspects of the Michigan Constitution. With the Delta variant circulating, it is important for Michiganders to have every available tool in their toolbox to protect themselves and others from this deadly virus."
Republican lawmakers included several provisions to broadly restrict state or local pandemic power 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 in an effort to highlight politically potent ideas that are ultimately doomed.
Under the budget that passed 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.
The bill also aimed to prevent the state from mandating vaccines for state employees unless required to do so by a federal law or requirement.
While these provisions will not be enforced, Whitmer's team 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.
A spokeswoman for Senate Majority Leader Mike Shirkey, R-Clarklake, appeared to single out this new requirement in offering praise for the budget last week.
"There are specific negotiated items all parties agreed to and we do expect that the governor will accept the public health transparency and accountability language —increasing accountability and transparency is just good government," said spokeswoman Abby Mitch.
However, House Appropriations Committee Chairman Thomas Albert, R-Lawton, specifically lauded some of the provisions last week that Whitmer is set to declare unenforceable.
"Language in the budget plan leaves decisions on whether masks should be worn in schools to local school boards and parents — not the state or unelected bureaucrats," a release from his office stated.
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.
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. Her spokesman also did not immediately answer questions about the governor's position on the items in the budget.
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.
"We are still completing a thorough legal review and will have more to say when the governor signs this legislation next week, but this dangerous language which ties the hands of public health professionals is unconstitutional and the governor will declare it unenforceable," Leddy said on Friday.
"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."
This came too little, too late for at least one local health department. The Dickinson-Iron District Health Department 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.
This concern and 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. In response to Detroit Free Press questions about local concerns last week, health department spokeswoman Lynn Sutfin thanked county officials for their work and then said the department should get credit for any mask orders these counties enact.
Sutfin said nearly 65% of Michigan students go to a school in a district or county that has some kind of mask mandate. However, that still means hundreds of thousands of students attend class where masks are not required.
The U.S. Center for Disease Control and Prevention recently released a pair of additional studies showing COVID-19 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.
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