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Michigans public health code is the law, and so are the emergency orders coming from Michigan Department of Health and Human Services Director Robert Gordon.

Gordons actions differ in legal basis from Gov. Gretchen Whitmers emergency orders that the Michigan Supreme Court struck down on Oct. 5.

Even some of the most ardent challengers of Whitmers executive orders recognize the legal authority of MCL Section 333.2253 (1), which states that if Gordon determines "that control of an epidemic is necessary to protect the public health, the director by emergency order may prohibit the gathering of people for any purpose and may establish procedures to be followed during the epidemic to insure continuation of essential public health services and enforcement of health laws.

No Michigan court has ruled that law unconstitutional.

But there will be legal challenges to some elements of Gordons orders, including the Pause to Save Lives order that went into effect Wednesday, Nov. 18.

Read more: Heres what changes in Michigan under new COVID-19 restrictions, in place for 3 weeks

Those legal challenges are not the same as previous opposition to the governors executive orders, said David Kallman, an attorney who represented several business owners affected by Whitmers orders, including the Owosso barber Karl Manke, who famously refused to shut down his shop.

This is a lot different than the Governors executive orders, he said. Those were violating separation of powers and delegation and all those things... We dont have those same issues here. What we have here are statutes through (MDHHS) where theyve been delegated direct authority by the legislature to enter certain orders.

State and local health departments are charged with stopping the spread of communicable diseases, said Linda Vail, Ingham County Public Health Director. That includes actions intended to maintain health services, as MCL 333.2253 states, which she said is now impossible on a local department level without additional controls on communities.

Weve got such widespread illness right now, that the gathering of people is simply hazardous, she said. One of our mandated services is control of communicable diseases. Well, we cant control communicable disease if it gets out of control and we lose our typical capacity to control epidemics... Those orders are put in place to get us back to a level where we can control and contain disease.

State law charges health departments with the control and elimination of infectious or communicable diseases.

Michigan added another 5,772 new coronavirus cases and 62 new deaths on Wednesday, Nov. 18, as the daily average for the last week climbed to 6,932 cases and 61 deaths per day.

Read more: Hospitals send urgent message as coronavirus spread threatens Michigans U.P.

There were 3,792 patients hospitalized with confirmed or suspected cases of COVID-19 as of Wednesday. Of those patients, 809 were in ICU beds and 396 were on ventilators. Hospital bed capacity is also at risk without additional health department controls, Vail said.

The legal authority of public health codes and subsequent emergency orders exists in states across the country, Vail said. She pointed to Jacobson v. Massachusetts, a 1905 U.S. Supreme Court case that establishes precedent going beyond the restriction of gatherings.

That case involved mandatory vaccinations in Cambridge, Massachusetts to curb a smallpox epidemic. The court ruled that government can restrict individual liberty under the pressure of great dangers to the safety of the general public.

Routinely, when you see challenges to the health code, you will see this U.S. Supreme Court case cited as case law, Vail said. Challenges that have happened in the 100 years since have pointed back to this case to support the health code and its constitutionality.

In Michigan, the public health code was first ratified in 1919, after the outbreak of the Spanish Flu. It was updated in 1978, and has not been overturned in a state or federal court.

When people call Kallman for legal advice to challenge the new orders, he starts out by explaining what the states health code undeniably does allow, such as declaring an epidemic and limiting gatherings. But there may be limitations to orders based on first amendment grounds, he said.

The health code says if (Gordon) determines that theres an epidemic... is anyone seriously going to argue that were not in an epidemic now? I cant see a court ruling that theres no epidemic right now," Kallman said. "The second thing is, when the director determines theres an epidemic, he can do two things: One: he can issue an order to prohibit gatherings for any purpose. Thats pretty broad language...

Thats when you start getting into constitutional issues, he continued. For example, if Director Gordon gave an order saying no more church services and you guys cant meet at all... I can tell ya, wed be filing a lawsuit tomorrow, because now youre directly colliding with the constitution.

The Pause to Save Lives order does not prohibit gathering for religious worship. Lawful protests, such as anti-lockdown rallies in Lansing or racial equality marches in Detroit that may have violated orders earlier this year were likely not subject to enforcement due to First Amendment protection of the right to assembly, Kallman said.

Kallman is currently representing businesses opposing mask requirements ordered by Gordon.

Read more: Chiropractor challenges Michigans new mask mandate in lawsuit

He argues that health departments must be allowed to provide health services, but that doesnt reach all the way to mandating individual behavior.

If the local or county health department wanted to hand out masks for free, thats a service like free flu shots. Thats a service they can provide, he said. But now, were going to mandate that you have to wear a mask. How is that a service?

Another challenge to the health code comes from the Michigan Restaurant and Lodging Association. Part of Gordons newest order bans dine-in service at restaurants and bars, but allows for takeout and delivery services.

The MRLA projects 6,000 restaurants could shutter by spring if theres a prolonged closure and no federal aid. It also expects 40% of restaurants to close temporarily during this time and 250,000 Michigan workers in the industry to be laid off.

Read more: Restaurant groups sue Michigan, ask court to block dine-in restaurant ban

What could become key in lawsuits from restaurants is the Takings Clause of the Fifth Amendment of the Constitution, Kallman said. The clause states: Nor shall private property be taken for public use, without just compensation. While MDHHS isnt literally taking over private businesses, they could effectively be doing so by limiting what they can do, he argues.

Since the initial shutdowns in the spring, Michigan businesses have been able to receive PPP loans of $150,000 from $5.7 million in federal coronavirus relief funds derived from the CARES Act. Also, $26.1 billion in unemployment benefits have been paid out to Michiganders since March.

Ultimately, the courts will determine the constitutionality of the states orders, Kallman said, and the laws and orders stand until such a ruling.

Could the orders run into those sort of issues? Absolutely," he said. "Hows the court going to come down on that? Your guess is as good as mine.

Vail argues that Jacobson vs. Massachusetts, being more than a century old, has withstood the test of time.

Its 100 years ago, and its still used, she said. Its still supported, still cited, still used by courts in this country to uphold and reiterate the power and the authority ... to protect public health. This aint a new thing, and it aint just a Michigan thing."

Read more from MLive:

Michigans 3-week partial shutdown begins, but some fear it could go into 2021

Many forms of outdoor dining also prohibited during Michigans 3-week pause

Dine-in restaurant ban is a nail in the coffin of Michigan businesses, industry leaders say

Michigan shutters in-person dining, high school sports in response to COVID-19 case surge

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Michigans public health orders are legal under state code, but there will be constitutional challenges - MLive.com