Photo courtesy the Office of the Governor
Photo courtesy the Office of the Governor

The coronavirus is a clear and present danger. Constitutionally, that means a lot. 

LANSING, MI — Gov. Gretchen Whitmer’s “Stay Home, Stay Safe” order is not unconstitutional. 

That was the ruling by the Michigan Court of Claims just announced Wednesday.

The Court heard Martinko v. Whitmer, a case arguing that quarantine procedures the April order (and it’s modified May successor) implemented were a violation of the due process rights of Michiganders. 

The plaintiff argued that the policies Gov. Gretchen Whitmer instituted which limit access to stores, travel and other related engagements —  without some kind of criminal or civil court proceedings —  violated the constitutional rights to not be deprived liberty without due process of law. 

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Judge Christopher M. Murray did not find that argument compelling, reports WXYZ

“Those liberty interests are, and always have been, subject to society’s interests – society being our fellow residents,” Murray said while delivering his opinion. “They – our fellow residents – have an interest to remain unharmed by a highly communicable and deadly virus, and since the state entered the Union in 1837, it has had the broad power to act for the public health of the entire state when faced with a public crisis.”

Murray’s stance reflects certain limitations to constitutional rights well-known in the legal community. 

A Clear and Present Danger

In a World War I-era Supreme Court case called Schenck v. United States, the high Court held that constitutional liberties had to be weighed against compelling government interests in public safety, particularly where lives were endangered. In the Court’s opinion, Justice Oliver Wendell Holmes articulated that interest in terms of a “clear and present danger” test. 

The most famous example of a “clear and present danger” comes from Holmes himself. In the opinion, he argued that shouting “Fire!” in a crowded theater when there was no fire could be a disruption that endangered lives, and therefore would not be a constitutionally-protected act. 

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Applied to Martinko, the “clear and present danger” is the novel coronavirus, which, The ‘Gander notes, has killed more than a thousand people in Detroit alone. As such, actions taken to prevent loss of life to the pandemic are responses to a clear and present danger to Michiganders. 

“I am pleased with the court’s decision,” Michigan Attorney General Dana Nessel said. “This pandemic has already taken more than 3,600 lives in Michigan and many more around the world. The primary goal of the ‘Stay Home, Stay Safe’ order has always been to protect human life.”

Responding to That Danger

Michigan has taken very measured responses to the pandemic, especially considering the state presently meets none of the White House criteria to re-engage the economy. 

A case making the same broad arguments as Martinko was filed Tuesday by several Michigan businesses, WXYZ reports.

The businesses claim Michigan has “shuttered civil society, placed 10 million people under house arrest and taken jobs away from nearly 1.2 million people, all without due process of law.” This amounts to essentially the same argument that failed to persuade the court in Martinko.

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Martinko also argued that the powers Whitmer has used to implement dozens of pandemic response orders over the past two months are powers that belong to the Republican-controlled Michigan Legislature, which has wanted to dramatically scale back the order following the lead of President Donald Trump.

The Court also didn’t think that argument was persuasive, noting that Whitmer’s powers in a crisis are neither “uncontrolled” nor “arbitrary”, rather that they represent a “very specific procedures and criteria for the Governor to declare a state of disaster or emergency, and what conditions qualify as a disaster or emergency.”

It is likely that at least some of the lawsuits against Whitmer over the “Stay Home, Stay Safe” order will be appealed.