GOP congressman sues Whitmer to overturn 'unreasonable' emergency actions

Craig Mauger
The Detroit News

Lansing — U.S. Rep. Paul Mitchell, R-Dryden, has filed a lawsuit contending that Michigan Gov. Gretchen Whitmer's emergency moves to combat COVID-19 violate his constitutional rights and the separation of powers in government.

In the most high-profile legal action against the Democratic governor's restrictions yet, Mitchell, acting in his capacity as an individual, filed the suit Monday in U.S. District Court's Western District. All of the Grand Rapids district's judges have been appointed by Republican presidents. 

"I think we need to clarify the extent of what an emergency is and the extent of those powers and re-enforce that people have constitutional rights," said Mitchell, a businessman who was first elected to the U.S. House in 2016.

U.S. Rep. Paul Mitchell, R-Dryden, and Gov. Gretchen Whitmer, a Democrat, are pictured.

"Precluding people from traveling across the state to visit their grandchildren for their birthday, really?" Mitchell asked. "We've gone over the edge on some of this."

Whitmer and supporters of the COVID-19 restrictions argue that the measures are needed to stem the spread of the novel coronavirus and prevent hospitals from becoming overwhelmed with patients. However, the number of new cases being reported statewide has begun to decline in recent weeks.

Tiffany Brown, Whitmer's spokeswoman, declined Monday to comment on pending litigation. During a Sunday appearance on CNN — the day Michigan hit 43,754 confirmed cases of the virus — Whitmer said the state is facing a public health crisis.

"Whether you agree with me or not, I’m working to protect your life if you live in the state of Michigan," the governor said.

Lavora Barnes, chairwoman of the Michigan Democratic Party, labeled Mitchell's lawsuit a "political stunt" in a statement.

Mitchell's suit names Whitmer and Robert Gordon, director of the state Department of Health and Human Services. It argues that the governor's emergency orders have violated the separation of powers among the legislative and executive branches and his rights to association, intrastate travel and engaging in commerce.

The suit also labels the statewide restrictions "unreasonable" for areas of Michigan where there are few cases. The filing describes Whitmer's measures as "lockdown orders," which Mitchell says "shock the conscience" and interfere with "deeply-rooted liberty and property rights."

The governor's stay-at-home orders generally require people to stay inside their residences unless they leave for outdoor activity or essential reasons, such as going to the grocery store or pharmacy.

The new suit says the congressman can't travel to visit family in the state. And, it says, the governor's orders have prevented him from getting medical care for a condition he has that results in bone-on-bone contact in his knee.

"No Michigander, including Mitchell, should be forced to choose between risking criminal prosecution and economic sanctions under the Lockdown Orders on the one hand or seeking medical treatment on the other," Mitchell's lawsuit says.

Whitmer issued temporary restrictions on non-essential medical and dental procedures beginning March 21. The move was meant "to reduce the strain on the health care system and protect people."

Asked last week about lifting the restriction, Whitmer said, "I do think there is going to be something in the coming days on that front."

The congressman's lawsuit comes as the GOP-controlled Michigan Legislature considers its own potential legal challenge against Whitmer's unilateral actions. Senate Majority Leader Mike Shirkey, R-Clarklake, said the suit likely won't come this week but "probably" next week.

Mitchell, a Republican who isn't seeking re-election this year, noted Monday that he led a 2015 effort to oppose a ballot proposal backed by then-GOP Gov. Rick Snyder to increase the sales tax to boost road funding. That proposal was "fundamentally wrong" and so are the COVID-19 restrictions, he argued.

The virus is an ongoing public health issue, Mitchell said. And the emergency powers granted to a governor weren't meant to allow a single officeholder to manage state affairs for an extended period of time, he said.

"That wasn't the intent of the Emergency Powers Act," Mitchell said of one of the laws granting Whitmer emergency authority. "And that kind of power is unconstitutional."