BARRY COUNTY, Mich. — A West Michigan sheriff says his department will not enforce the emergency orders issued this week by the Michigan Department of Health and Human Services.
The order requires face coverings and limits crowd sizes among other things.
Law enforcement officers are authorized to investigate violations of the order.
“It’s not law and it’s that simple,” said Barry County Sheriff Dar Leaf.
This summer several police agencies took a similar stance after Governor Whitmer expanded an executive order dealing with face coverings.
“It has to be within the guidelines of the constitution,” said Leaf. “ This pandemic, didn’t trample or shred the constitution so we took an oath.”
Lead is basing his decision off of Friday’s Michigan Supreme Court ruling, which found a 1945 law granted Michigan governors unchecked authority.
“Our state Supreme Court themselves in a 7-0 ruling said that the governor never had the authority to make those orders after a certain date,” said Leaf. “I believe this is going to have to go through our legislature before we’ll do any enforcement on it.”
However, legal experts dispute the reasoning.
“This is a different fight,” said Devin Schindler, WMU Cooley Law School assistant dean.
Schindler says the court based its decision on different statutes than the one cited by MDHH. He adds that while the public health code gives wide authority to officials, there’s more guidance.
Gordon referenced that in an editorial Monday.
“The argument here is the greater specificity in the health laws do not violate the nondelegation doctrine because they give the necessary guidance to the executive,” said Schindler.
However, Schindler acknowledges it could still be seen as a constitutional violation and says it’s likely only the courts will be able to decide how far health officials can use their emergency authority.
“We don’t have a definitive answer one way or another because we’re working in new times, but we’re dealing with different statutes so it’s entirely possible the outcome could be different,” said Schindler.