September 27, 2021

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Statement from Assistant Attorney General Eric Dreiband and Michigan U.S. Attorneys on Michigan Supreme Court Ruling Striking Down Governor Whitmer’s Pandemic-Related Orders

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<div>Assistant Attorney General for Civil Rights Eric Dreiband, U.S. Attorney Matthew Schneider for the Eastern District of Michigan, and U.S. Attorney Andrew Birge for the Western District of Michigan issued the following statements:</div>

Assistant Attorney General for Civil Rights Eric Dreiband, U.S. Attorney Matthew Schneider for the Eastern District of Michigan, and U.S. Attorney Andrew Birge for the Western District of Michigan issued the following statements:

“Today’s decision by the Michigan Supreme Court is a victory for all Michiganders and the rule of law,” said Assistant Attorney General Eric Dreiband of the Civil Rights Division.  “The United States Constitution guarantees a republican form of government to every state in our free country.  The Constitution does not permit any public official unlawfully to restrict our liberty.  All public officials must respect the right of the people to govern themselves at all times, especially during a crisis.” 

“On June 23, we wrote to Governor Whitmer and urged her to work cooperatively with the Michigan Legislature to reopen Michigan safely and address the multitude of concerns that Michiganders have had about the restrictions on their liberties,” said United States Attorney Matthew Schneider. “The best solutions for preserving our liberties and keeping us safe involve listening to the people of Michigan, and this decision by the Michigan Supreme Court upholding the rule of law now allows that to happen.”

“While the Governor has had the public’s health interests at heart, this decision underscores the importance of a legislature to the legitimacy of restrictions on liberty,” said United States Attorney Andrew Birge. “I urge the Governor and Michigan legislators to work together going forward in responding to this pandemic so that we stay safe and free.”

Background

On June 23, 2020, Assistant Attorney General Dreiband, U.S. Attorney Schneider, and Birge wrote to Governor Whitmer to express their concerns about the Governor’s restrictions on the civil rights and liberties of the People of Michigan as part of her response to the COVID-19 pandemic:  “We write in the spirit of constructive cooperation to suggest greater cooperation with the Michigan legislature. Michiganders have raised numerous good-faith concerns about the orders you have issued—about whether they are authorized under state law, infringe on constitutional rights, or draw arbitrary and irrational distinctions among authorized and unauthorized economic activities. Working with the state legislature to reopen Michigan safely will relieve the public of concerns about the EMA and ensure greater representation of the people in matters that have serious consequences for their liberty. Such cooperation may also help identify any potential constitutional concerns with existing and any future orders. Further, and perhaps most importantly, working with the state legislature will affirm that Michigan and its public officials remain committed to the ‘Republican Form of Government’ mandated by the United States Constitution. U.S. Const., Art. IV, §4.”

On May 29, 2020, the Department of Justice filed a statement of interest in a Michigan federal court in support of a lawsuit filed by seven businesses challenging the restrictions imposed by Governor Gretchen Whitmer in response to the COVID-19 pandemic.  That statement of interest explained that the governor’s COVID-19 orders, however well-intentioned, raised constitutional concerns by imposing what appeared to be arbitrary and unreasonable limits on how and ultimately whether certain businesses could operate in Michigan relative to other similarly situated businesses.  The statement of interest also explained that the federal Constitution provides for a cohesive national economy for all 50 states and all Americans and that the governor’s COVID-19 orders may be unduly interfering with interstate commerce.

Matthew Schneider, U.S. Attorney for the Eastern District of Michigan, and Assistant Attorney General Dreiband, are overseeing the Justice Department’s effort to monitor state and local policies relating to the COVID-19 pandemic.

The federal case is Signature Sotheby’s International Realty, Inc., et al. v. Whitmer, No. 1:20-00360 and additional information about the department’s May 29 statement of interest can be found here:  https://www.justice.gov/opa/pr/department-justice-files-statement-interest-support-businesses-suffering-arbitrary-and

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