DOJ says Whitmer's orders impose 'arbitrary' and 'irrational' business restrictions
WASHINGTON, D.C.-- The Department of Justice Friday filed a statement of interest in a Michigan federal court in support of a lawsuit filed by seven businesses challenging the restrictions imposed by Governor Gretchen Whitmer in response to the COVID-19 pandemic.
The statement of interest is part of Attorney General William P. Barr’s April 27, 2020 initiative directing Assistant Attorney General Eric Dreiband for the Civil Rights Division, and the U.S. Attorney for the Eastern District of Michigan, Matthew Schneider, to review state and local policies to ensure that civil liberties are protected during the COVID-19 pandemic.
In response to the COVID-19 pandemic, the Governor of Michigan has, over the past two months, issued over 100 executive orders that impose sweeping limitations on nearly all aspects of life for citizens of Michigan, significantly impairing in some instances their ability to maintain their economic livelihoods.
According to the lawsuit, the governor’s orders are arbitrary and discriminate against their businesses by treating them differently than other similarly situated businesses. Although the governor’s actions have required the plaintiffs to close or significantly restrict their businesses for over two months, the orders have allowed similar occupations to operate.
The plaintiffs include a real estate brokerage, a lawn and property maintenance company, an automotive glass exporter, an engine oil and auto parts distributor, a small jewelry store, a dental office, and an association of car washes. The plaintiffs brought their case in the Western District of Michigan.
“Our Constitution is enduring, and it is critically important that government comply fully with the Constitution in times of crisis,” said Assistant Attorney General Eric Dreiband of the Civil Rights Division. “The Constitution permits appropriate state and local government restrictions to protect the health and safety of Americans, but it does not permit arbitrary limits that limit the right of all people in our country to be treated equally and fairly by the government.”
“While we appreciate the governor’s serious responsibility to safeguard public health through this pandemic, the Department of Justice has an obligation to call attention to the contours of the rights enshrined in the federal Constitution and to counsel against arbitrary restrictions on liberty,” said Andrew Birge, U.S. Attorney for the Western District of Michigan.
“I have no doubt about the governor’s good intentions, but the Executive Orders arbitrarily discriminate by allowing some businesses to operate while similar businesses must close or limit their operations—and if they refuse, they face fines and possible jail time,” said Matthew Schneider, U.S. Attorney for the Eastern District of Michigan, who, with Assistant Attorney General Dreiband, is overseeing the Justice Department’s effort to monitor state and local polices relating to the COVID-19 pandemic. “Under the Governor’s Orders, it’s ok to go to a hardware store and buy a jacket, but it’s a crime to go inside a clothing store and buy the identical jacket without making an appointment. That’s arbitrary. As important as it is that we stay safe during these challenging times, it is also important to remember that we do not abandon our freedoms and our dedication to the rule of law in times of emergency."
In its statement of interest, the United States explains that the facts alleged by the plaintiffs could amount to violations of the Commerce Clause and the Equal Protection Clause of the Constitution.
Governor Whitmer issued the following in response to the DOJ’s Statement of Interest:
“Throughout this crisis, we have followed the science and listened to medical experts to keep our hospital system from collapsing and protect front line health workers who are looking out for the people of Michigan. All of us know the importance of getting people back to work and the economy moving again. The state has already loosened restrictions on construction, manufacturing, real estate, and retail, with more expected in the coming days. But the worst thing we can do is open up in a way that causes a second wave of infections and death, puts health care workers at risk, and wipes out all the progress we’ve made.
“We have absolute confidence in the legal authority I have exercised to protect the people of Michigan. It is crystal clear that this challenge is coming directly from the White House, which is ignoring the risk of a second wave of the virus and pushing too quickly to roll back public health guidelines. We know that will only prolong the pandemic and make the economic pain that much worse for Michiganders. No matter what happens, I will always put the health and safety of Michiganders first.”
