The Department of Justice has filed a statement of interest in a lawsuit filed by seven Michigan businesses challenging restrictions imposed by Governor Whitmer in response to the Wuhan coronavirus pandemic. The plaintiffs are 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. They brought their federal case in the Western District of Michigan.
In its press release, the Justice Department notes that Gov. Whitmer has issued over 100 executive orders. Collectively, says the DOJ, the orders impose sweeping limitations on nearly all aspects of life for citizens of Michigan, and some of them significantly impair citizens’ ability to maintain their economic livelihoods.
Whitmer has become notorious for the seemingly arbitrary nature of some of her orders. The orders at issue in the Western District litigation arguably are among them. For example, the DOJ notes that it’s okay in Michigan 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.
In its statement of interest, the Justice Department warns that the facts alleged by the plaintiffs could amount to violations of the Commerce Clause and the Equal Protection Clause of the Constitution. However, courts usually accord great deference to the judgments of executives in cases like these.
Thus, Michigan probably can survive this challenge if it can show even a minimally rational basis for the distinctions its governor has drawn. For example, it might be enough to argue that hardware stores need to stay open because some of the goods they sell are more essential than those sold by clothing stores.
Gov. Whitmer responded to the DOJ’s action not by pointing to any rational basis for the orders at issue, but rather with, in essence, an ad hominem argument. She sniffed: “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.”
Actually, the challenge is coming directly from the Department of Justice. But regardless of whether the White House is involved, all that matters is whether Whitmer’s orders are arbitrary.