Michigan Congressman Takes Governor to Court Over Stay-at-Home Orders

Michigan Governor Gretchen Whitmer on March 23 in Lansing when she directed residents to stay at home. (Julia Pickett/Michigan Office of the Governor)

(CN) — A Michigan congressman claims in a suit filed Monday that Democratic Governor Gretchen Whitmer’s stay-at-home orders overstep the boundaries of executive authority and deprive Michigan residents of a republican form of government.

U.S. Representative Paul Mitchell III, a Republican who represents the state’s 10th Congressional District, says in the suit filed in the U.S. District Court for the Western District of Michigan that the orders have prevented him from seeking treatment for his osteoarthritis by stopping elective surgeries and, more generally, that they contradicted the U.S. Constitution’s Guarantee Clause. 

“As the Governor has interpreted and applied the Emergency Powers Act and the Emergency Management Act through the EOs, she has full and unchecked power to govern by executive fiat,” said Mitchell’s complaint, submitted by attorney Daniel McCarthy of the Detroit-based firm Butzel Long. “No governor has the power to keep the entire State on lockdown indefinitely and suspend self-government merely by declaring a ‘new’ emergency or a ‘new’ disaster every 28 days.”

Whitmer, a Democrat in the Midwestern swing state, invoked emergency powers March 11, just after the first two cases of Covid-19 were diagnosed in Michigan. That decision and successive executive orders have been a source of tension in the state ever since. 

The state’s Republican-controlled legislature has also threatened legal action against Whitmer over the orders, and the state capital of Lansing has seen two rounds of “Liberate Michigan” protests demanding their repeal. The first of those protests got the Twitter endorsement of president Donald Trump, who said Friday that Whitmer should “give a little, and put out the fire.”

With nearly 44,000 confirmed cases and 4,135 deaths in the state as of Monday, Whitmer has stuck to her guns. “My stay-home order is one of the nation’s more conservative,” she told reporters last month, “but the fact of the matter is, it’s working. We are seeing the curve start to flatten. And that means we’re saving lives.”

Mitchell’s suit argues that the curve has already been flattened and that the emergency is over. 

“Objective data and reporting shows that the curve was flattened during the first week of April 2020,” the lawsuit claims. “Yet the Governor has nonetheless continued to issue stricter and unclear executive orders that unreasonably and unnecessarily interfere with constitutional rights.”

The orders’ prohibition on interstate travel, the complaint alleges, combined with the surgery prohibitions to prevent Mitchell from seeking treatment for his osteoarthritis and stopped him from hiring labor and purchasing supplies to build a barn on his property, which he says infringes upon his right to engage in commerce.

Mitchell was first elected to the U.S. House of Representatives in 2016, and announced last year that he planned to retire rather than campaign for re-election in November. Despite this, the complaint argues that his ability to engage in political speech was curtailed by the orders, preventing him from sharing his views on policy and supporting other candidates. 

“Technology does not and cannot supplant direct and group interaction when communicating about matters of political concern,” the complaint said.

Neither Whitmer nor Mitchell’s offices immediately responded to requests for comment Monday.

University of Michigan law professor Samuel Bagenstos said he was skeptical of the suit’s merits.

“I’d say, most generally, this lawsuit is much more of a political than a serious legal action. The claims in the lawsuit range from the incredibly weak to the patently frivolous,” he said. “Several of the claims are claims over which the court simply has no jurisdiction,” including Mitchell’s claims that the orders violated the U.S. Constitution’s Guarantee Clause.

The Supreme Court, Bagenstos noted, has routinely held that the clause, which requires each state to have a republican form of government, cannot be the basis of lawsuits. In addition, federal court is not the proper venue for Mitchell’s claims that Whitmer violated Michigan state law, he said.

Mitchell’s other claims, Bagenstos said, aren’t much more plausible.

“The other claims, which are based on the federal constitution, are incredibly weak. They don’t take into account the very broad deference that public health officials have when responding to a crisis,” he said. “[The state of emergency] certainly impinges on liberty, but the question is whether it denies due process, and the idea that an order that was put in place in response to a pandemic which has killed so many people… impedes substantive due process is absurd.”

Michigan Democratic Party chair Lavora Barnes was less than impressed with Mitchell’s arguments.

“GOP Congressman Paul Mitchell is wasting the court’s time with filing a lawsuit against Governor Whitmer. This is merely a political stunt meant to distract from the real business at hand,” she said in a statement. “Rep. Mitchell should focus his attention on helping Michiganders right now — creating economic relief for small businesses, ensuring access to health care for all, providing financial support to our hospitals, and supporting frontline workers with whatever they need including proper safety equipment and access to COVID-19 testing.”

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