Michigan Supreme Court Strikes Down Governor’s State-Of-Emergency Orders

 In a strong rebuke to “go-it-alone” governors in various states who have imposed severe lockdowns, the Michigan Supreme Court unanimously struck down Gov. Gretchen Whitmer’s Covid-19 emergency orders that have closed businesses, houses of worship, schools, parks and recreation facilities throughout Michigan.

In the nationally watched case that culminated with a landmark decision, the court said the governor had no right to extend, declare and sustain a state of emergency without the legislature’s backing. The October 2 ruling said she illegally drew authority from a 1945 law that doesn’t apply.

Whitmer had used the Emergency Powers of the Governor Act of 1945 (EPGA) to extend an initial state of emergency past the 28-day deadline set by the legislature, which ended April 30. She then began issuing over 100 executive orders mandating mask wearing, expanding unemployment, and delaying “non-essential” medical procedures among other things.

The court’s decision said that “the executive orders issued by the Governor in response to the COVID-19 pandemic are an unlawful delegation of legislative power to the executive branch in violation of the Michigan Constitution.”

These laws “lack any basis under Michigan law,” the ruling said, invalidating in one fell swoop scores of emergency orders.

As similar cases unfold across the country in response to severe restrictions issued by governors during the pandemic, the Michigan case serves as a cautionary tale about what might happen when public officials conflate their mandate to serve with a runaway ambition to reign.

A Call to ‘Burn Your Masks’

Attorney Katherine Henry, who argued the case before Michigan’s highest court, responded to the ruling by inviting the state’s residents to “burn your masks” and get back to business, Fox News in Detroit reported.

“That means burn your masks right now if you didn’t already. Open your gym and movie theater and open whatever business you have,” Henry said. “Go on and frequent whatever business you would like to go to. And if you have a house of worship that’s limited your services because of the Executive Orders, forget that. All of those executive orders, they’re out, they’re gone, they’re done.”

Whitmer said she vehemently disagreed with the court’s decision and has vowed to find a way to keep the lockdowns in place. “Right now, every state and the federal government have some form of declared emergency,” she defended her measures. “With this decision, Michigan will become the sole outlier at a time when a large area of Michigan is experiencing rates of Covid infection not seen in our state since April.”

As it turns out, some emergency orders she issued will remain intact due to existing avenues of authority through the state’s public health agency. Michigan Department of Health and Human Services quickly reinstated aspects of Gov. Whitmer’s orders regarding masks and limits on public gatherings.

But the Republican-controlled Michigan House and the Senate will now have a say in which coronavirus restrictions are to remain in effect in Michigan.

The court’s ruling came as nearly 400,000 Michigan residents had signed a petition called “Unlock Michigan” to reel in Whitmer’s executive authority, insisting she is abusing her power under the guise of protecting citizens by enforcing coronavirus restrictions.

When Michiganders rebelled against the draconian restrictions earlier this year, Whitmer warned them that their protests would only contribute to an extension of these restrictions.

In response, “Recall Whitmer” activists are petitioning the Republican-controlled legislature to repeal the 1945 law that would dramatically limit what their governor could do without legislative approval during declarations of emergency.

“No one should think that allowing a politician to have unlimited power for an unlimited duration is a good idea,” said one spokesperson for “Unlock Michigan” quoted in The Associated Press.

‘We Didn’t Know’   

In one of the most bitterly divisive issues, one that also created a firestorm in NY, in reaction to Gov. Cuomo’s policies, Whitmer directed nursing homes to re-admit Covid-19 residents after they were released from hospitals still in an infectious state.

Whitmer blamed the measures she took on the CDC, saying she followed the federal agency’s guidelines and “never once required that nursing homes take Covid-19 patients. Many chose to and when they did, they followed the practices from the CDC about separation and not having intermingling.”

“In the early days, following the CDC was the gold standard. That’s what we were doing,” Whitmer said at a town hall meeting at the end of the summer. She said it wasn’t known at the time how deadly it would be to the elderly, and if she had the knowledge she has now, “she would do things differently.”

Such remorse rings hollow, say critics, when the record shows that Whitmer vetoed multiple bills passed by the Legislature over the summer forbidding this practice precisely due to the fragility and susceptibility of nursing home residents.  The governor paid no heed to reports that it was causing Michigan nursing homes with their frail and vulnerable residents to become a hotbed of infection.

As a result of her and other governors’ administration’s policies, approximately a quarter of the nation’s more than 220,000 Covid-19-related deaths have occurred in nursing homes, Politico and other news sources attest.

DOJ Mulling Investigations of Nursing Home Deaths

The outcry over the shocking death tolls prompted the federal Justice Department last week to announce it is weighing whether to investigate whether New York, New Jersey, Pennsylvania and Michigan (all led by Democratic governors) violated nursing home residents’ civil rights by admitting these patients.

More than 6600 Covid-related deaths have been reported in New York facilities. In terms of their Covid-19 nursing home policies, Gov. Andrew Cuomo and Gov. Whitmer appear to have been following the same playbook. Cuomo is said to have gone so far as to threaten to revoke the licenses of nursing homes that refused to comply with his administration’s orders regarding the admission of Covid patients.

In all, as many as 4500 covid-19 infected patients were sent to nursing homes across the state, according to a count conducted by Associated Press.

The governor previously defended the policy in the same language Whitmer used, saying his administration “followed federal guidelines” from the Centers for Medicare and Medicaid Services. But in the face of a significant backlash from both directors of facilities and patient advocates after thousands died in these facilities, he halted the practice in May.

CMS administration Seema Verma challenged Cuomo’s rationalization of his catastrophic policy in a Fox News interview. “Under no circumstances should a hospital discharge a patient to a nursing home that is not equipped to take care of those patients’ needs,” she said. She explained that federal policy dictates that if a Covid-positive nursing home resident can’t return to that facility, the government will subsidize that patient’s continued stay in the hospital.

Shrouded in Mystery           

Cuomo has adamantly opposed any investigation into his administration’s coronavirus response, insisting it’s all part of “ugly politics” orchestrated by his critics. His administration’s report has pinned the blame on workers and visitors for not taking proper precautions and spreading the coronavirus.

The report said the death count was not a “significant factor” in New York’s toll of more than 23,000 Covid-19 fatalities, when compared with staggering death tolls in nursing homes in other states like Pennsylvania (68% of total state deaths), Massachusetts (64%), and even New Jersey (44%). [Data from the Kaiser Family Foundation]

But many believe New York’s nursing-home death toll is shrouded in mystery — and might be significantly undercounted, the Associated Press reported.

“Governors don’t get a pass on accountability” because they feel they should be above reproach, writes Business Insider. “The public has a right to know whether his decision to force nursing homes to accept Covid-infected patients caused unnecessary death and spread of the virus.”

Officials said the Justice Department’s Civil Rights Division “seeks to determine if the state orders requiring admission of Covid-19 patients to nursing homes is responsible for the deaths of nursing home residents.”

DOJ must ensure nursing home residents “are adequately cared for with dignity and respect and not unnecessarily put at risk,” the statement said.

‘Recall Whitmer’ Petitions Gaining Steam

In the meantime, the Michigan nursing home fiasco refuses to be laid to rest and has triggered multiple petitions aimed at recalling the governor, reports MichiganLive. The fastest growing petition is one that specifically seeks to recall Whitmer for her signing of Executive Order 2020-50 related to “residents and staff of long-term care facilities during the Covid-19 pandemic.”

The Recall Whitmer Movement is a grassroots campaign organized by a group called Guarding Against Government Excess (GAGE). “In our opinion, the governor has made an unconstitutional overreach of power,” James Makowski, a Michigan attorney and the group’s founding member, told Fox News. “Her measures are absolutely draconian. There was no need to endanger anyone in nursing homes as many hospitals had not reached capacity.”

Makowski said the governor’s executive orders to nursing homes put Michigan’s most vulnerable citizens at risk. “Representatives in the House and Senate are elected by the people and she’s ignored and defied their directives. It’s time for the people to take back that power.”

To earn a spot on a future ballot, a petition would need to collect more than 1.06 million signatures, within a 60-day period. Collection of signatures is expected to begin Oct. 23 and run into late December.

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Deadly Nursing Home Policy

In a September 21 article published in NewsBreak and other outlets, Michigan State Sen. Dale Zorn who was a strong supporter of the vetoed Senate Bill 956, legislation that prohibited hospitals from discharging Covid-positive patients into nursing homes, blasted what he called Gov. Whitmer’s “deadly policy.”

When Covid first appeared in the U.S., the article said, “one of the few things we knew about it was that it was much more dangerous for the elderly.” As a result, the national Centers for Medicare & Medicaid Services issued guidance in mid-March about how to control Covid outbreaks in nursing homes and long-term care facilities.

“Nursing homes are not hospitals, and they are certainly not an appropriate place to house patients with Covid-19 unless they have a confirmed plan to isolate those patients from the other residents,” the article stressed.

“However, instead of protecting our most at-risk seniors from the coronavirus, Gov. Whitmer issued an executive order in April forcing nursing facilities with less than 80% capacity to create space to accept patients with Covid-19, regardless of their ability to care for them and isolate the spread of the virus.”

As a result, Sen. Zorn said, “over 2,000 people in our nursing homes have died from the virus, accounting for one-third of all Covid-19 deaths in Michigan.”

Placing Covid patients in nursing homes without adequate protection for residents was irresponsible, when two field hospitals that were set up to serve thousands of patients went mostly unused and other hospitals were not full, the state senator said.

“It was a preventable tragedy, and I joined my colleagues in support of legislation that would ensure our state had the ability to treat future Covid patients, while never again jeopardizing the lives of nursing home residents.

Zorn reviewed the purpose of Senate Bill 956 which the governor vetoed. “It prohibited the placement of Covid-19 positive patients in nursing homes unless the facility could properly isolate and treat the patient. It also placed a priority on separate dedicated facilities for positive patients.”

Governor’s Task Force Echoed The Legislation She Vetoed

Ironically, the governor’s own Michigan Nursing Homes Covid Preparedness Task Force then released recommendations that echoed the very same legislation she had vetoed.

“The governor’s rejection of the bipartisan legislation, which would have already implemented some of her task force’s recommendations, and her refusal to work with the Legislature on corrective actions continues to jeopardize our seniors in nursing facilities,” Sen. Zorn stated.

“The U.S. Department of Justice has also requested Covid-19 data from the administration concerning executive orders that may have led to the deaths of nursing home residents. I am hopeful they will be more successful in getting the data, answers and accountability that the governor refuses to provide to us,” the article concluded.

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Leading Scientists Urge End to Lockdowns

Health and Human Services (HHS) Secretary Alex Azar held a meeting last week with leading scientists and epidemiologists who are advocating for a “herd immunity” approach to tackling Covid-19, as opposed to draconian lockdowns.

Azar met with Professor Martin Kulldorff of Harvard University as well as Oxford Professor Sunetra Gupta and Stanford Professor Jay Bhattacharya. The three are considered to be among the top epidemiologists in the world.

The experts argue that locking down all of society causes more harm than good, and public health experts should instead focus on protecting the most vulnerable members of society.

The doctors have been calling for an end of lockdown policies and the adoption of a public health strategy they call “focused protection. Together they signed a declaration stating that lockdowns are “producing devastating effects” on short and long-term public health.

“The results (to name a few) include lower childhood vaccination rates, worsening cardiovascular disease outcomes, fewer cancer screenings and deteriorating mental health,” the declaration said.

Keeping these measures in place until a vaccine is available will cause irreparable damage, with the underprivileged suffering disproportionate harm, the doctors stressed.

“Fortunately, our understanding of the virus is growing. We know that vulnerability to death from Covid-19 is more than a thousand-fold higher in the old and infirm than the young. Indeed, for children, Covid-19 is less dangerous than many other harms, including influenza,” the experts noted.

“As immunity builds in the population, the risk of infection to all – including the vulnerable – falls, the declaration stated.

“We know that all populations will eventually reach herd immunity – i.e.  the point at which the rate of new infections is stable – and that this can be assisted by (but is not dependent upon) a vaccine. Our goal should therefore be to minimize mortality and social harm until we reach herd immunity.” 

The declaration urged a “compassionate approach,” which is to allow those who are “at minimal risk of death” to live their lives normally “so as to build up immunity to the virus through natural infection, while better protecting those who are at highest risk.”

Since their signing of the declaration over the weekend, more than 4,500 medical and public health scientists, 8,400 medical practitioners and 118,000 members of the general public have added their names to it, wrote MaineWire.

The three doctors said their meeting with Secretary Azar was productive and the discussion of their proposals continues.

The meeting sparked speculation the U.S. may rely on “herd immunity” to defeat the coronavirus while reopening the economy going forward.

Quarantine Alone Won’t Do It

A fourth renowned epidemiologist, Prof. Harvey Risch of Yale School of Public Health, has made it clear that “protecting those who are at highest risk” does not mean merely quarantining them while they “tough it out.”

It requires treating them with drugs that in scores of peer-reviewed studies have proved their life-saving value.

This includes the much misunderstood but wonderfully potent hydroxychloroquine, falsely maligned as “dangerous” by the FDA, said Prof. Risch in a riveting interview together with the renowned Dr. Zev Zelenko, hosted by Barry Shaw of the Israeli Institute of Strategic Studies.

Featured on “The View from Israel,”  the two experts discussed their views on why Israel has experienced such a devastating second wave of coronavirus; the facts that are being suppressed about herd immunity; and what Israel can do to save lives in the current upsurge of Covid-19.

Dr. Zelenko disclosed that he had productive talks with former Israeli Health Minister Yaakov Litzman about the value of HCQ and the urgent need to make it available in Israel to fight Covid-19. The talks made significant progress, said Dr. Zelenko, when Litzman himself came down with Covid-19, took the “Zelenko Protocol” including HCQ+azithromycin+zinc, and recovered.

Litzman was replaced by another health minister, however, before the obstructions blocking access to the drug in Israel could be removed. Despite the rising number of fatalities in Israel as the virus has spiked, all efforts to reach out to the new health minister proved fruitless, said Dr. Zelenko.