U.S. Department of Justice backs businesses' suit challenging Whitmer orders

Craig Mauger Robert Snell
The Detroit News

The U.S. Department of Justice is supporting seven businesses that filed a lawsuit challenging Gov. Gretchen Whitmer's executive orders to combat COVID-19.

In a "statement of interest" filed in the case Friday, the Department of Justice says the businesses have "identified what appear to be arbitrary distinctions among business and activities in the state of Michigan that lack a rational basis."

According to the Justice Department, the statement of interest is part of U.S. Attorney General William Barr’s previously announced initiative to review "state and local policies to ensure that civil liberties are protected during the COVID-19 pandemic."

The Justice Department’s move provides a powerful ally in support of a lawsuit seeking to overturn restrictions imposed during the COVID-19 outbreak, restrictions federal prosecutors said might be unconstitutional.

U.S. Attorney General William Barr

“If demonstrated to be irrational and arbitrary, the orders would violate the Equal Protection Clause,” prosecutors wrote in the statement of interest filed in federal court. “The facts alleged also suggest that Michigan’s orders may be unduly burdening interstate commerce in violation of the Commerce Clause.”

Whitmer has said her executive measures, which include stay-at-home orders that began March 24, are meant to save lives and based on data and science.

"We have absolute confidence in the legal authority I have exercised to protect the people of Michigan," Whitmer said in a statement Friday. "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."

The governor noted that "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," she said.

Many epidemiologists have also touted Whitmer's approach to fighting the spread of COVID-19.

"I think the governor has taken a lot of pressure from people who are not thinking about this very smartly. And I think she’s really held strong and done what’s good for the people of Michigan," said Dr. Ashish Jha, director of the Harvard Global Health Institute, earlier this month. 

But the new filing says under Whitmer's orders, bicycle shops can repair a bike without an appointment, but going to a jewelry store without an order is a criminal act. Also, the filing says staffed car washes are prohibited, but a community car wash for neighbors is allowed.

Attorneys signing onto the filing included Michigan's Eastern District U.S. Attorney Matthew Schneider and Western District U.S. Attorney Andrew B. Birge.

"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," Schneider said in a press release.

"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."

U.S. Attorney Matthew Schneider talks on the ongoing corruption case targeting leaders of the UAW

However, Richard Primus, a professor at the University of Michigan who teaches constitutional law, said the Justice Department's equal protection arguments didn't make sense because the standard doesn't require the government to treat every business the same.

"Pharmacies can fill prescriptions and ice cream parlors can’t," Primus said Saturday. "That doesn’t mean the ice cream parlors are being discriminated against in some unconstitutional way."

The filing was significant, the law professor said, as it showed the Trump administration would go to great lengths to oppose public health measures instituted by Whitmer.

Primus also noted a U.S. Supreme Court decision from Friday night, in which the court rejected a challenge to limits on church services in California. In an opinion written by Chief Justice John Roberts, Roberts said the Constitution entrusts "the safety and the health of the people" to "the politically accountable officials of the states to 'guard and protect.'"

But the shared interest state and federal governments have in promoting public health strategies to combat COVID-19 does not justify illegal restrictions on citizens, federal prosecutors further said in their filing Friday.

“Indeed, action contrary to law is likely to erode public confidence in, and compliance with, legitimate efforts taken to address the COVID-19 pandemic,” prosecutors wrote.

A pandemic does not justify all government actions, according to the Justice Department filing.

“It is hard to conceive of a rational basis for permitting retail establishments, including marijuana dispensaries, to welcome customers who will interact directly with employees and likely come into contact with other customers while prohibiting car washes from providing exterior washes purchased online with the customer separated from the employee by a closed car window,” prosecutors wrote.

Seven businesses brought the original lawsuit in Michigan's Western District federal court that the U.S. Department of Justice weighed in on Friday. It's one of numerous suits that have challenged Whitmer's orders.

The suit was brought by Signature Sotheby’s International Realty Inc., Executive Property Maintenance, Intraco Corporation Inc., Hillsdale Jewelers, Casite Intraco LLC, Shortt Dental, and Midwest Carwash Association. 

They allege the orders, which have forced some businesses to close and required many residents to generally stay inside their homes, unreasonably and unnecessarily interfere with constitutional rights.