Why compliance doubts loom over Whitmer's response to 3rd COVID surge

Apr. 20—LANSING — Michigan officials and outside experts who've advised them say concern about whether residents would follow another round of government-mandated restrictions is among the main reasons the state has responded differently to the latest surge in COVID-19 infections.

The situation points to deep political divisions that have complicated the fight against the coronavirus for more than a year and the challenges on the horizon for the effort to vaccinate 70% of the state's adult residents 16 years and older.

Michigan's COVID-19 infection rates have been increasing for eight weeks. The Great Lakes State has led the nation in new cases per population for nearly three weeks. And on Monday, the state reported 4,158 adults hospitalized with the virus, a record tally for the pandemic.

But unlike during the first two surges — one in spring 2020 and one last fall — Democratic Gov. Gretchen Whitmer's administration has resisted imposing new limitations on gatherings and businesses to bring the numbers down.

Strategic restrictions, if followed by the public, would produce less transmission of the virus, said Dr. Joshua Sharfstein, vice dean for public health practice and community engagement at the John Hopkins Bloomberg School of Public Health. But Sharfstein, with whom Whitmer has consulted during the pandemic, said he believes the governor doesn't currently view such emergency policies as a viable option.

"I don't think the governor would disagree if people didn't go to crowded bars, they wouldn't get sick. That's the fact of a virus," Sharfstein said.

But he added, "the governor is making a judgment about what's possible."

Whitmer has repeatedly argued against new restrictions this month. Last week, she said instead of "closing things down," her administration is encouraging "people to do what we know works," referring to vaccines, mask-wearing and social distancing.

"That's the most important thing that we can do," Whitmer said. "It's not the policy problem. It's a variant and compliance problem."

The approachhas received applause from Republican lawmakers who control the Legislature but marks a sharp shift from the administration's response to the past two surges. Last week, House Speaker Jason Wentworth, R-Farwell, said the governor "should continue focusing on vaccinations, encouraging personal responsibility and moving Michigan further along the path to normalcy."

However, in the fall, as cases and hospitalizations rose,Whitmer's then-health director, Robert Gordon, suspended indoor dining, in-person classes at high schools and colleges and other businesses. Both Whitmer and Gordon later argued that so-called "pause" succeeded. Gordon said it saved hundreds of lives.

"Caution has worked for us in Michigan, and we are staying with our cautious approach today," said Gordon on Jan. 13, nine days before he abruptly resigned as health director.

Some public health experts have called on Whitmer to return to a more "cautious" approach and issue new restrictions to combat the ongoing surge in the state. On April 12, Dr. Rochelle Walensky, director of the Centers for Disease Control and Prevention, said the answer to Michigan's situation was to "shut things down."

Similarly, during an appearance on NBC's "Meet the Press" on Sunday, Dr. Anthony Fauci, the director of the U.S. National Institute of Allergy and Infectious Diseases, spoke against the idea of rushing vaccines to Michigan, as has been suggested by Whitmer's administration.

"But the best way when you're in the middle of a real big outbreak and a big surge is really to shut down things much more so," Fauci said. "If you take vaccines from other places and move it around, you make that place vulnerable to what's going on in Michigan."

Different 'tools'

Whitmer also appeared Sunday on "Meet the Press." Host Chuck Todd pressed her on why she had changed her approach to the third wave. But Whitmer countered that the state was in a "much different position" than it was previously.

The governor said health officials now know more about how mask use combats the spread of the virus, have wider access to protective equipment and testing, and have launched a vaccination campaign. Through Monday, about 31% of Michigan's adults 16 and older had been fully vaccinated, according to the state health department.

"On top of that, in the waning months, I have been sued by my Legislature," Whitmer added. "I have lost in a Republican-controlled Supreme Court. And I don't have all of the exact same tools."

Whitmer was referring to the Oct. 2 ruling by the Michigan Supreme Court that a state law allowing the governor to declare emergencies and keep them in place without legislative input — the 1945 Emergency Powers of the Governor Act — was unconstitutional. The governor had used the law to issue stay-at-home orders and other restrictions to stem the spread of the virus.

Legislative Republicans, who have often urged the governor to more quickly ease restrictions on businesses and gatherings, said the court decisions ensured "a system of checks and balances."

After the ruling, Whitmer's administration began imposing restrictions under the public health code, which allows the state health director to issue epidemic orders that "prohibit the gathering of people for any purpose" or "establish procedures to be followed during the epidemic to insure continuation of essential public health services and enforcement of health laws."

At the time, then-Director Gordon said his power, under the public health code, to issue directives was "narrower" and "with clearer contours" than the governor's. Whitmer-appointee Elizabeth Hertel, who became the health director on Jan. 22, still has the powers provided by the public health code.

But Steve Liedel, former legal counsel to former Gov. Jennifer Granholm and Whitmer's transition team, said there are actions a governor can take under an emergency declaration that can't be taken by the director under the public health code, like suspending existing laws. He provided the example of public boards having to meet in person now, something Whitmer had previously altered unilaterally through an executive order.

Whitmer herself could potentially issue a new emergency declaration under the 1976 Emergency Management Act, but there would be a 28-day time limit before the Republican-controlled state Legislature could lift the executive orders.

"I think that probably given the (virus) variants, you could argue that the public emergency is new," Liedel said. "But you also run the risk of undermining the effort if you immediately have people in the Legislature who are going to challenge it. The question is how effective would such an order be?"

The governor has to look at the whole set of circumstances and her ability to bring others along, Liedel said.

"It doesn't do much good if large swaths of the population are not going to comply," he said.

Political divisions persist

For now, Whitmer has focused on voluntary requests, hoping they will help stem the spread of the virus in her state. On April 9, she asked for a two-week hiatus on indoor dining and a two-week pause for youth sports and in-person high school classes.

"At the end of the day, it's going to come down to whether or not the citizens take this seriously and do their part," Whitmer said on "ABC News Live" Thursday night.

That same night, she appeared on MSNBC, where she described the state as "incredibly divided" after "the politics of the last 14 months."

"What might seem like a natural thing to do is much more complicated than what the CDC might suggest when you look at the reality here on the ground," the governor said.

All of the top 12 counties for new cases per population during the month of April voted for Republican former President Donald Trump, who regularly spoke out against COVID-19 restrictions, in November's election: St. Clair, Sanilac, Huron, Tuscola, Macomb, Otsego, Lapeer, Mason, Gladwin, Oceana, Newaygo and Jackson.

Only one of the 12, Macomb, voted for Whitmer in her race against Republican Bill Schuette in 2018.

St. Clair County has reported 3,454 new cases since April 1, according to state data. That's one new infection for every 46 residents on average.

Last week, Dr. Annette Mercatante, medical health officer for the St. Clair County Health Department, told WPHM that she didn't think half the population would follow a "lockdown" even if it was an order. Trump got nearly double the votes Democrat Joe Biden did in the county. He won it 64% to 33%.

On Saturday, Attorney General Dana Nessel, a Democrat, tweeted her department had faced "enormous blowback from county prosecutors, sheriffs, and police chiefs" in trying to enforce Whitmer's past executive orders. Republican officeholders had encouraged "defiance at every turn," Nessel said.

"I have long compared this situation to that of a serial murderer on the loose, but instead of helping to track down the killer, law enforcement announces that efforts by the government to have residents lock their doors and windows is a tyrannical action," Nessel tweeted.

On March 23, a few weeks into the upward curve, the Michigan Department of Health and Human Services released data that showed the percentage of people staying at home had declined to pre-pandemic levels.

Richard Czuba, a pollster and founder of the Lansing-based Glengariff Group, said he hasn't recently run a survey on people's feelings toward COVID-19 restrictions. But he said it's reasonable to think people are starting to let their guards down. That doesn't mean it's a good thing, but it's an honest appraisal, he said.

"I think it's fair to understand that more than a year later that people are tired," Czuba said. "There's not a soul that wouldn't tell you that."

cmauger@detroitnews.com