Feds back Michigan businesses in suit against Whitmer’s coronavirus orders

LANSING — The U.S. Department of Justice announced late Friday that it is backing a lawsuit against Michigan Gov. Gretchen Whitmer, arguing she “imposed arbitrary and irrational limits” on businesses to fight COVID-19.

The move comes one month after U.S. Attorney General William Barr directed federal prosecutors to review state and local policies “to ensure that civil liberties are being protected” during the coronavirus pandemic. 

Whitmer, in a statement, attributed the legal intervention to President Donald Trump, who she and several other governors have clashed with during the public health crisis. 

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“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,” Whitmer said. 

The suit, filed in federal court in late April on behalf of several businesses operating in Michigan, attempts to “define the limit of state’s police power” and alleges that Whitmer violated the constitutional rights of business owners by forcing them to close through executive orders while placing 10 million residents “under house arrest.”

It’s among a slew of lawsuits challenging various orders Whitmer has issued to slow the spread of the virus, which has killed 5,406 Michigan residents since the state’s first confirmed diagnosis in mid-March. 

“I have no doubt about the governor’s good intentions, but the executive orders arbitrarily discriminate by allowing some businesses to operate while similar businesses must close or limit their operations — and if they refuse, they face fines and possible jail time,” Matthew Schneider, U.S. Attorney for the Eastern District of Michigan, said in a statement. 

“Under the Governor’s Orders, it’s ok 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,” he continued. “That’s arbitrary.”

Schneider and Assistant Attorney General Eric Dreiband are heading up the Department of Justice’s review of state and local pandemic policies. The DOJ’s action, called a “statement of interest,” is akin to a friend-of-the-court brief, and allows the Justice Department to weigh in with its position in pending cases. 

Andrew Birge, U.S. Attorney for the Western District of Michigan, helped prepare the new legal brief in the suit against Whitmer, which was filed by Signature Sotheby’s International Realty,  Midwest Carwash Association and other firms. 

“It is hard to conceive of a rational basis for permitting retail establishments, including marijuana dispensaries, to welcome customers who will interact directly with employees and likely come into contact with other customers while prohibiting car washes from providing exterior washes purchased online with the customer separated from the employee by a closed car window,” prosecutors said in a court brief. 

Whitmer, in her late Friday statement, said that she knows the importance of “getting people back to work” and reopening the economy, noting she has already loosened restrictions on construction, manufacturing, real estate and retail, which she allowed to re-open by appointment in most of the state and more widely in northern Michigan. 

“But the worst thing we can do is open up in a way that causes a second wave of infections and death, puts health care workers at risk, and wipes out all the progress we’ve made,” the governor said. “We have absolute confidence in the legal authority I have exercised to protect the people of Michigan.