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Opinion: Lawsuit helped to relax restrictions

Robert Norton

Gov. Gretchen Whitmer extended her executive order requiring Michigan residents across the state to remain indoors until mid-May. As part of the order’s extension, Whitmer also eased some of its restrictions, relaxing certain travel restrictions and allowing some businesses previously deemed non-essential to reopen.

While some might think this move signals that Whitmer has realized her original orders were an executive overreach, her decision may have more to do with what has been going on in federal court.

More:Whitmer extends stay-home order till May 15, relaxes garden, boating bans immediately

Since declaring a state of emergency on March 10, numerous lawsuits have been filed that accuse the governor of abusing her powers. One lawsuit in particular has threatened to curtail her order, if not strike it down entirely, for being too vague and practically unenforceable. Beemer vs. Whitmer, filed in federal court for Michigan’s western district, southern division, challenges the governor’s highly politicized and arbitrary prohibitions on specific sectors of Michigan’s economy. The governor’s response to this lawsuit may best explain her apparent change of heart. 

As part of the lawsuit, plaintiff counsel Robert Muise requested a temporary restraining order ahead of the trial hearing, one that would force Whitmer to halt execution of her executive order in advance of a court decision. That stipulated order, otherwise known as a preliminary injunction, has now been signed by Judge Maloney, who is presiding over the case. Whitmer may have relaxed her restrictions, but the political pressure from federal court seems to have forced her hand into doing so.

We can, of course, rejoice that Whitmer has granted what she calls a “temporary reprieve” of some of the worst restrictions contained in her executive order. But the debate sparked by her actions, and by Beemer vs. Whitmer, is far from over. 

Debate sparked by Gov. Whitmer's actions, and by Beemer vs. Whitmer, is far from over, Norton writes.

Constitutional law requires that lawmakers exercise strict scrutiny in proposing any legal infringements on constitutionally protected rights. That means lawmakers must carefully and conscientiously limit their proposals to actions that are clear, demonstrably warranted and easily enforceable. We have very little case law to guide lawmakers in the arena of pandemics and emergency powers, but the principle of strict scrutiny is a legal requirement of legitimate action.

In responding to Beemer vs. Whitmer, Whitmer’s attorneys are adopting an almost completely contrary approach. Drawing on a Supreme Court ruling from 1905, Whitmer’s attorneys argue that the coronavirus pandemic vests Whitmer with “broad authority” to take whatever action she deems fit. Indeed, rather than applying strict scrutiny to her executive actions, Whitmer has enjoined that her executive order be “construed broadly” in its scope and application. Such vagueness could be dangerous for liberty and the rule of law in America. 

Right now, all eyes in Michigan should be trained on Beemer vs. Whitmer. With this lawsuit, the federal court stands to define legal precedent for years to come. By reaching a decision on the merits of Beemer vs. Whitmer, the court will decide on whether the governor has stayed within the scope of her powers, and whether opaque, irrational and discriminatory lawmaking is legitimate during a state of emergency. 

The coronavirus pandemic is a real national emergency, but law must make no concessions to political pressure or public panic. Whitmer has acted more like a politician than a conscientious lawmaker. Beemer vs. Whitmer has already made headway in limiting her overreach. Let’s hope the fight for responsible rule of law enjoys more such victories as the case is proceeds to court. 

Robert Norton is general counsel of Hillsdale College but expresses these views in his personal capacity.