As a handful of states in the Midwest begin to lift stay-home orders and other restrictions implemented back in March and April to slow the spread of COVID-19, Michigan Governor Gretchen Whitmer (D) seems content to take the slow and steady approach to reopening the state. However, that approach isn’t good enough for some residents who are watching their businesses disappear. As a result of the state’s stay-home order and other restrictive executive orders preventing many businesses from operating, seven business owners filed a lawsuit challenging those orders. Within the last few days, the U.S. Department of Justice announced it will support those seven businesses who just want to get back to work.On Friday, the Department of Justice issued a ‘statement of interest’ that says “the businesses have identified what appear to be arbitrary distinctions among business and activities in the state of Michigan that lack a rational basis.” The statement of interest comes a few weeks after U.S. Attorney General William Barr announced he planned to review “state and local policies to ensure that civil liberties are protected during the COVID-19 pandemic.” Fortunately for the seven business owners, the Justice Department is a powerful ally to have in a lawsuit, especially since that lawsuit seeks to “overturn restrictions imposed during the COVID-19 outbreak.”

Current Michigan Gov. and former Ford School faculty Gretchen Whitmer delivering a speech in 2015. Image via Flickr/user:FordSchool. (CCA-BY-2.0).

Some federal prosecutors have even said that certain restrictions such as some implemented under Whitmer’s many executive orders may even be unconstitutional. In the recent statement of interest, which was filed in federal court, the prosecutors wrote:“If demonstrated to be irrational and arbitrary, the orders would violate the Equal Protection Clause. The facts alleged also suggest that Michigan’s orders may be unduly burdening interstate commerce in violation of the Commerce Clause.”In response to the statement of interest, Whitmer said all the executive measures she has implemented so far are “meant to save lives and are based on data and science.” However, many frustrated Michigan residents are still waiting to see that science and data. She added:"We have absolute confidence in the legal authority I have exercised to protect the people of Michigan. 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…The state has already loosened restrictions on construction, manufacturing, real estate, and retail, with more expected in the coming days…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.”Just what sort of orders do the seven business owners claim are irrational and arbitrary, though? For starters, the filing says “under Whitmer's orders, bicycle shops can repair a bike without an appointment, but going to a jewelry store without an order is a criminal act…staffed car washes are prohibited, but a community car wash for neighbors is allowed.”Michigan's Eastern District U.S. Attorney Matthew Schneider, one of the attorneys signing onto the filing, chimed in and added:"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…That’s arbitrary. As important as it is that we stay safe during these challenging times, it is also important to remember that we do not abandon our freedoms and our dedication to the rule of law in times of emergency.”The statement of interest further states that “the shared interest state and federal governments have in promoting public health strategies to combat COVID-19 does not justify illegal restrictions on citizens…Indeed, action contrary to law is likely to erode public confidence in, and compliance with, legitimate efforts taken to address the COVID-19 pandemic.”In short, the filing argues that a pandemic like the one we’re facing with COVID-19 does not justify all the restrictions and orders Whitmer has implemented. It states:“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.”The seven businesses involved in the original lawsuit that was filed in Michigan’s Western District federal court include Signature Sotheby’s International Realty Inc., Executive Property Maintenance, Intraco Corporation Inc., Hillsdale Jewelers, Casite Intraco LLC, Shortt Dental, and Midwest Carwash Association. The lawsuit is one of many that has been filed against Whitmer over her orders.

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U.S. Department of Justice backs businesses' suit challenging Whitmer ordersDOJ backs lawsuit against Michigan governor's stay-at-home measures