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Feds tap Schneider in review of COVID-19 orders amid fight with Whitmer

Robert Snell
The Detroit News

Detroit — Federal prosecutors on Monday started reviewing whether restrictions enacted by state and local officials to curtail the spread of COVID-19 are violating citizens' civil rights and liberties.

U.S. Attorney General Bill Barr announced the sweeping measures that followed criticism from President Donald Trump who has sparred in recent weeks with Gov. Gretchen Whitmer over the government's response to the coronavirus outbreak.

U.S. Attorney Matthew Schneider

On Monday, Barr tapped the top law enforcement officer in Metro Detroit, U.S. Attorney Matthew Schneider, to oversee a review of state and local orders in the country — a review that could overturn measures that have included broad restrictions on businesses and other economic activity.

Trump nominated Schneider to serve as the region's top federal law enforcement officer in 2018.

"Many policies that would be unthinkable in regular times have become commonplace in recent weeks, and we do not want to unduly interfere with the important efforts of state and local officials to protect the public," Barr wrote in a memorandum Monday.

"But the Constitution is not suspended in times of crisis. We must, therefore, be vigilant to ensure its protections are preserved, at the same time that the public is protected."

Gov. Gretchen Whitmer

Schneider oversees federal prosecutions in a region battered by COVID-19. As of Monday, 73% of Michigan's COVID-19 cases were in Macomb, Oakland and Wayne counties.

“Across the country, many officials are imposing limitations on our rights in order to safely navigate citizens through the pandemic," Schneider said in a statement to The Detroit News on Monday. 

"But these restrictions must be both reasonable and temporary.”

In his memo Monday, Barr said the Justice Department review will focus on the constitutionality of state and local laws imposed during the pandemic.

“If a state or local ordinance crosses the line from an appropriate exercise of authority to stop the spread of COVID-19 into an overbearing infringement of constitutional and statutory protections, the Department of Justice may have an obligation to address that overreach in federal court,” Barr wrote.

Kelly Rossman-McKinney, a spokeswoman for Michigan Attorney General Dana Nessel, pushed against the federal moves Monday.

"As a former deputy attorney general for the State of Michigan, we’re confident that U.S. Attorney Matthew Schneider is familiar with the concept of state sovereignty and the state’s power to make autonomous decisions for its citizens, without interference from the federal government," Rossman-McKinney said. "To the extent it becomes necessary though, my department stands ready to make those same arguments to a court."

Whitmer on Monday outlined her next steps for reopening the state's economy, saying construction and other low-risk workplaces will soon see loosened restrictions.

But the Democratic governor also announced she's seeking a 28-day extension of her emergency declaration from the Michigan Legislature, which is scheduled to meet this week.

Her declaration would expire Friday, but there's debate over what that would actually mean for executive powers. On Monday, Whitmer said her emergency powers don't depend on an extension from the Legislature.

Trump during his press briefing Monday was asked whether the federal government would sue states over their orders of restriction. He said it would depend on the circumstances of the state. 

"(Barr) wants to see people get back and wants to see people get back to work," Trump said. "He doesn't want people to be held up when there's no reason for doing it. And in some cases, perhaps it's too strict. He wants to make sure people have their rights."

Trump was asked how America should be reopened and whether restrictions could be reimposed. The president said he's relying on the country's governors on those matters.

"From the beginning, the governors — some of them — are doing an extraordinary job — not all of them — but some of them," he said.

An attempt to overturn orders imposed by Whitmer and other state and local officials likely will require a federal lawsuit, said Peter Henning, a Wayne State University law professor and former federal prosecutor.

“I suspect there is a political aspect to this,” Henning told The News. “(Trump) wants the states to open up. But governors have authority over when states are going to open up and when businesses will restart. I’m not sure that’s going to be an easy lawsuit to bring.

“States have police powers and are separate sovereigns,” Henning added. “Typically, the Justice Department doesn’t have that inherent authority, but they can file their lawsuits. How far that’s going to go remains to be seen.”

Last week, Whitmer extended her stay-at-home order through May 15, while lifting certain restrictions on businesses and outdoor activities.

The order allows individuals to travel between two residences in Michigan, including to a new home, though Whitmer strongly discouraged such travel during the coronavirus pandemic. A ban on travel to vacation rentals remains in place.

She is also allowing motorized boating and golfing (without motorized carts) as long as people observe "strict" social distancing protocols to remain six feet apart from one another. Also open now are lawn services, garden shops, landscapers and nurseries. 

Michigan now has 38,210 confirmed cases of the virus and 3,407 deaths linked to it, according to data from the Michigan Department of Health and Human Services.

rsnell@detroitnews.com

Twitter: @robertsnellnews 

Staff Writer Craig Mauger contributed.