Michigan’s COVID Shutdowns Are Legally the same as Martial Law
Restaurant owners have been urging defiance of Michigan Governor Gretchen Whitmer’s shutdown orders. Citizens in Michigan have been bristling under a “mask mandate” even though the Michigan Supreme Court has repeatedly struck down Whitmer’s orders.
These orders from the Governor are not laws, however, and they are based on the broadest interpretation possible of her powers under state law for emergencies. Eight months into that emergency, the Governor still claims immediacy requires her to ignore the legislature and the judiciary, in order to prevent the crisis she sees with the data only she has. Some are arguing that this situation is not a ‘shutdown’ or a ‘mandate’ or ‘orders’ but, rather, the imposition of Martial Law.
Unemployment spiked due to the shutdown but it recently declining, and people are once again leaving the Wolverine State in search of job opportunities and just the chance to dine in. One resident of Lansing who wished not to be named due to his employment situation, said that he cannot find any venues to date or meet up with anyone, since all dine-in options have been closed at the dictate of Governor Whitmer. “I drive several hours down to Toledo (Ohio) in order to have a beer and a burger and a dose of sanity, even though they have a 10pm curfew.”
The legislature has sued in order to overturn the Whitmer shutdown orders, and succeeded, only to have Whitmer initially ignore the court order, and then say that she was shifting her authority for it to the health code, a change in legal authority but not in application, with still no reprimand from the court.
The neverending pandemic, justified by data that is closely held and not revealed, suspending much of the open records act to prevent public review, the Executive Branch of the Michigan government has operated like an occupying military force and, some say, the more proper terminology to define what is happening is Martial Law in lieu of the current phrasing “Mandatory Shutdowns.”
The traditional definition of “Martial Law” involves the military as an occupying force and as the people in charge. Others suggest, though, that the occupying power is merely whatever one is suspending the lawful rights of citizens, and that in this case it can be the Governor who enacts martial law, or this version of martial law which has a more appealing name to the public.
The government has been notorious for the use of euphemisms to hide the application of its power. The term “collateral damage” is often used to verbally hide the reality of innocents being killed from a military action. The federal government has been especially adept at hiding its abuses with language.
The politicization of language often involves describing things in the most persuasive way possible, instead of accurately depicting the underlying issue. On the left, “Hate speech” is used as a cover for left-wing censorship. On the right, “Family values” is often used to describe a social conservative political agenda. There are long-running debates about whether abortion policy should be described as pro-life/anti-abortion versus pro-choice/pro-abortion and many other similar positional framings.
The mainstream media, however, is perfectly content to only describe shutdowns as what the government calls them, and not describing what they are: the suspension of most fundamental rights of Americans. The shutdowns in Michigan have involved the suspension of the freedom of assembly, the freedom of speech, the freedom of religion, the freedom of movement. These suspensions are being challenged in court, even by Churches and religious private schools unwilling to accept a masking requirement, but rarely reported on. And when covered, they are reported as an issue of health, not of rights, and of weighing rights against the numbers provided by the imposing occupying force.
Could the Governor suspend the courts if another decision did not go their way? All indications say yes. Could the Governor shoot dissidents in the streets for defying mandates? Nothing indicates she cannot. Whether she would is different than whether she could, given the assumption of total authority by one person who refuses to abide by, and instead works around, state Supreme Court decisions.
Notably Whitmer acted, prior to the COVID crisis, to work around and ignore the legislature, which she once served in, when crafting state budgets. When the Republican-led legislature passed a budget her first year that she did not like, she simply rewrote it the next day using powers she arguably lacked. The suspension of the legislature’s powers started before COVID, and were simply accelerated under the usable COVID crisis.
Some contend that this is just politics, and not reaching the level of “Martial Law.”
The Supreme Court in the Duncan decision from 1946 had this to say about the lack of definition, and specifically the lack of a military connection, for the term “Martial Law”:
If a power thus to obliterate the judicial system of Hawaii can be found at all in the Organic Act, it must be inferred from provision for placing the Territory under ‘martial law.’ But the term ‘martial law’ carries no precise meaning. The Constitution does not refer to ‘martial law’ at all and no Act of Congress has defined the term. It has been employed in various ways by different people and at different times. By some it has been identified as ‘military law’ limited to members of, and those connected with, the armed forces. Others have said that the term does not imply a system of established rules but denotes simply some kind of day to day expression of a General’s will dictated by what he considers the imperious necessity of the moment.
In March Whitmer said she was not calling for martial law. She said that clearly she was not doing so because she only wanted a two-week shutdown.
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