Gov. Gretchen Whitmer’s protections against the coronavirus’ spread have been largely popular and have flattened the curve. But a flurry of conservative Michiganders have sued Whitmer to try and stop them.
LANSING, MI — The efforts of Gov. Gretchen Whitmer to manage the novel coronavirus pandemic and protect Michiganders from the disease have been met with increasingly stiff opposition. A wide range of conservatives have sued Whitmer on a number of claims relating to her handling of the pandemic.
None of them are likely to get all that far.
This is because no single Constitutional right is absolute, the Supreme Court regularly balances the rights of individuals against what it calls “compelling state interest,” and fighting a deadly pandemic is absolutely a compelling state interest.
That isn’t to say that courts won’t side with Republicans.
Legal arguments are often complex, and despite their desire to not appear so, courts are absolutely political in nature. But it isn’t likely that any case will result in a broad ruling that Whitmer’s various coronavirus protections are unconstitutional on their face.
One reason for that is that courts are absolutely political in nature.
Whitmer’s policies have been well-received by a majority of Michiganders and have been effective in slowing the spread of the pandemic. And the pandemic is absolutely serious. The ‘Gander reports that Michigan is the deadliest state to get diagnosed with the virus in, and more than one in ten diagnosed Detroiters die after contracting the virus.
A sweeping ruling against those protections risk putting blood on the court’s hands, and that is traditionally something courts are hesitant to risk.
So what about each individual case? How do they stack up? The ‘Gander looked at and ranked a collection of places where people have sued Whitmer.
5. Martinko v. Whitmer
The ‘Gander covered this case in detail. This case argues that things like stay-at-home orders deprive Michiganders of liberty without the due process of law. The core problem for Martinko is that courts don’t like to deal in absolutes. There are limitations on liberties.
Specifically in this case, Martinko would have to argue against a Supreme Court decision that’s critical to how civil rights in America are understood by the law. Schenck v. United States created something called the “clear and present danger” test. If an action presents a clear and present danger to the public, the government can prohibit that action even if it doesn’t square with certain liberties. The example the Supreme Court used was that shouting “fire” in a crowded theater when no fire existed created panic and endangered public safety, and so the government could restrict that right.
It would be really hard to argue that the coronavirus is not a clear and present danger. That was a key piece of the ruling against Martinko in late April.
“Those liberty interests are, and always have been, subject to society’s interests – society being our fellow residents,” Judge Christopher M. 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.”
Of course, Martinko can appeal, but it seems highly unlikely that this particular argument will be more compelling in other courts.
4. Michigan Nursery v. Whitmer
Welton Lawn Care and English Gardens took exception to the limitations placed on gardening services by the early forms of the pandemic protection orders. In response, industry groups took action and sued Whitmer in the case Michigan Nursery and Landscape Association v. Whitmer.
Like Martinko, Michigan Nursery has already been heard by a court and didn’t persuade the judge. U.S. District Judge Paul Maloney in Kalamazoo didn’t think actions that temporarily halted garden centers and landscaping services were an unconstitutional overreach and didn’t think those businesses were immune from the clear and present danger of the coronavirus.
MLive connected this with 1905 Supreme Court case Jacobson v. Massachusetts, which held that states using their power to help prevent the spread of disease was constitutional. Jacobson held that mandatory vaccinations were acceptable.
“This well-settled rule of law permits a state, in times of public health crises, to reasonably restrict the rights of individuals in order to secure the safety of the community,” wrote Assistant Attorney General Joseph Froehlich. ““The scourge of COVID-19 – a novel virus that quickly spread across the entire planet, infecting millions, and killings tens of thousands – presents such a crisis.”
Michigan Nursery has another problem, though. The things it complains about were eased for the May extension of the stay-at-home order. Courts are fairly reluctant to act on cases where the outcome won’t have any actual effects, so to continue Michigan Nursery will likely need to argue that it isn’t just the April order, but the power to make that order itself, that is a problem to show that the situation isn’t resolved. .
3. Mitchell v. Whitmer
Congressman Paul Mitchell (R-Dryden) filed a lawsuit in Grand Rapids against Whitmer’s stay-at-home orders. Being in a Federal court at least gives Mitchell an advantage over Martinko, as the federal judiciary has been radically reshaped by the Trump Administration.
Mitchell essentially argues support for Martinko rather than much of a case of its own, trying to argue that the pandemic isn’t a clear and present danger. Citing a relatively low rate of disease spread in certain Michigan counties, Mitchell echoes the Martinko claims with a slightly more direct address of Martinko’s problem and in a court system that might play out more favorably.
Specifically, the court in Grand Rapids where Mitchell filed his case is stacked with exclusively Republican-appointed judges.
But the problem is that the lack of people presently infected in some areas doesn’t mean there isn’t danger. The State of Michigan has repeatedly argued that it was the exact policies that Mitchell complains about that provided those low numbers he uses to argue the policies were unreasonable. Basically, Michigan will argue that it is only because the policy worked that Mitchell can complain about it.
It seems unlikely that a court wouldn’t side with Whitmer in that argument, since the overwhelming majority of the dara and efforts of science communicators are supporting that argument. It might not even be intending to persuade anyone. He might’ve sued Whitmer as a statement.
“I really don’t think there’s much of anything here,” former Deputy U.S. Attorney General Sam Bagenstos told WDET. “I think this is essentially a political statement, not a legal statement.”
2. Michigan House of Representatives v. Whitmer
Michigan’s Republican-controlled legislature sued Whtimer over the governor’s continued handling of the crisis, The ‘Gander reported. This case kind of stands out from the others and has some arguments courts might find compelling, legally speaking.
Crises are hectic. Acknowledging that, most forms of government give their executive emergency powers to deal with that criss. Additionally, the separation of powers in most American settings mean that issues like public health or enforcement of laws tend to fall on the Executive Branch. But the Legislature is attempting to assert it’s right to oversee these processes.
This seems good on paper, but law is complicated. While the Legislature refusing to extend the state of emergency at the end of April means Whitmer lacks emergency powers under a 1976 law, Whitmer has cited a 1945 law that continues to afford her emergency powers to enact reasonable policies.
Speaker of the Republican-controlled House of Representatives Lee Chatfield (R-Levering) says the law Whitmer cites doesn’t apply to anything but civil disturbances, while Whitmer says the law Chatfield cites only ends certain liability protections and not her emergency authority when the Legislature refuses to reauthorize it.
This amounts to what legal experts like to call “a bit of a headache.” But because this argument doesn’t rely on downplaying the nature of the emergency, just establishing the legislature’s role in it, it doesn’t run afoul of the Supreme Court arguments other cases on this list have.
Courts tend to concern themselves with precedent, so it seems unlikely that this case will be decided any time soon, and even less likely that either side will be entirely happy with the outcome. Courts would be reticent to tie the hands of governors during moments of crisis but also wouldn’t want to open the door for a legislature to be totally shut out of the process.
1. The Court of Public Opinion
This seems to be the only case that Whitmer is concerned with. While there are other, more minor and niche, cases of people who’ve sued Whitmer like the admittedly concerning Beemer v. Whitmer which argues that the right to bear arms is crucial during a pandemic (certainly it was crucial to the protesters in Lansing at any rate), the biggest case isn’t someone who sued Whitmer, but the case playing out over dinner tables.
So far, Whitmer’s actions to handle the coronavirus have been popular, The ;Gander reports. That said, as the pandemic nears the two-month mark and Michigan finally shakes off winter, that might not hold out. Even if people are aware the protections are necessary, the restlessness of Michiganders shut Belle Isle down twice last weekend.
The more Michiganders bump up against the policies, the harder those policies become to enforce. Whitmer has admitted that this factored into the decisions to start easing restrictions and begin the deployment of the re-engagement procedure called “MI Safe Start.”
Ultimately, despite being the ‘case’ with the least legal impact, the court of public opinion might have the most tangible impact. And that isn’t just limited to policy and politics, but to the courts as well.
The will of the public is a palpable force in the appeals process, particularly when dealing with dicey questions of constitutionality and governing dynamics. Ultimately, the person the people trust more in these cases will be factored into rulings. It may not decide how courts rule, but almost certainly will shape how far those rulings go, and how broadly any particular side is given the freedom to handle the situation the way they think is right.