The Michigan state senate has approved a 962-page budget for the next fiscal year, which begins on October 1. Section 250 of the enormous bill includes a provision that would restrict local health departments from issuing mask mandates to minors.
"The director or a local health officer shall not issue or enforce any orders or other directives that require an individual in this state who is under the age of 18 to wear a face mask or face covering," it reads.
Several county health departments have issued mask mandates for K-6 students in schools, including Kalamazoo, Allegan, Washtenaw, Ingham, and Kent Counties.
State senator Curtis Hertel Jr. (D-East Lansing) called the language unenforceable in a social media post Wednesday morning.
I’ve been hearing a lot of concerns regarding boilerplate language in the budget concerning public health orders. The language is obviously unenforceable. We would not have voted for it otherwise.
— Senator Curtis Hertel (@CurtisHertelJr) September 22, 2021
Governor Gretchen Whitmer did not say whether she planned to line-item veto the section during a public appearance on Wednesday, but said she and her team would be thoroughly reviewing the bill in its entirety.
"We negotiated all the budget items that are reflected in that budget. We agreed on the vast majority. Some of them, we still don't see eye to eye on. That's okay," she said. "There [is] going to be a very clear look at some of that language."
She said the Legislature was doing its job by getting her the budget, and she'd do her job by reviewing and making changes.
"We will do our task of going through, line by line, to see what is enforceable, what might not be enforceable. And then I will do my action, and get it signed and make some changes if necessary."
In a statement provided later that afternoon by the governor's spokesman, Bobby Leddy said Whitmer is aware of potentially unenforceable language in the bill. He said that the governor will use all tools at her disposal to make sure businesses, local health departments, schools, and other establishments would have the necessary tools to prevent the spread of COVID-19.
"We will continue to support public health measures that protect people and save lives, but oppose any attempts that diminish local ability to manage this pandemic or prevent local health departments from doing their jobs," he wrote.
Another section addresses mask mandates for kids in the form of section 510, which directs LARA, the state's licensing and regulatory agency, to not enforce mask mandates for children under 5. It also prevents LARA from taking disciplinary action against a licensee, like a business, that doesn't enforce such a mandate.
Another provision of the bill is in Section 251, which outlines the requirements for local health departments to submit a report to both the House and Senate appropriations committees any time they issue an emergency health order.
Such a report from a local health department must include the following:
- An explanation of the nature and scope of epidemic
- An explanation of the area of the state threatened by epidemic
- If applicable, evidence used to determine that a specific measure “ensures the continuation of essential public health services or the enforcement of health laws.”
- If applicable, evidence used to determine “that a prohibition on gathering contained in the emergency order is necessary to protect the public health.”
- A list of primary experts, organizations, or sources not affiliated with the department that were relied upon to issue the emergency order and any corresponding expenditures by the department associated with any such experts, organizations, or sources.
- A list of primary state government personnel responsible for developing the emergency order
The report must be issued to the committees within seven days of issuing the health order.
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