Michigan Governor’s Stay-At-Home Executive Order Is Unconstitutional And Arbitrary

By Katarina Bradford··  7 min read
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Michigan Gov Gretchen Whitmer

In March 2020, Michigan Governor Gretchen Whitmer passed the “Stay Home, Stay Safe” Executive Order mandating a state-wide lockdown to curb the spread of COVID-19 in Michigan, one of the states most severely hit by the virus. This Executive Order has sparked major controversy over its severe limitations on basic human rights and freedoms, which are markedly more restrictive than any other state’s response.

This has once again raised the most trending Constitutional question during the COVID-19 pandemic, namely, where is the line between emergency powers and unconstitutional rule? Many Michigan residents and thousands of others across the U.S. protest that Whitmer has gone too far and disregarded her constitutional limits as governor. 

Last week, you probably came across trending footage of thousands of Michigan residents protesting in their vehicles in the streets of Lansing, the state capitol. What were they protesting exactly? Since the COVID-19 outbreak in the U.S., state governments have imposed a vast array of restrictions on public life in order to curb the spread of the virus. However, no other state has undergone such strict and arbitrary restrictions as Michigan. 

In March, Governor Whitmer issued an executive order titled “Stay Home, Stay Safe,” which places stringent limitations on all gatherings and travel and prohibits all business that is “non-essential to protect and sustain life.” Though this appears like a reasonable response to the outbreak of COVID-19 in Michigan, the devil is in the details. The question naturally arises, what exactly constitutes, according to Whitmer, an “essential, life-sustaining business” and what activities are punishable by law? This is where the Bill becomes painfully arbitrary.

Traveling, Gardening, and Confusion

According to the Executive Order, all Michigan residents were required to stay home at all times, save for several exceptions. These exceptions included outings for necessary medical treatment—including abortion—grocery shopping, solitary outdoor activities, and caring for an elderly or disabled family member. Initially, residents were allowed to travel to a friend's house or between their own residences (if they have more than one). But in an updated order issued April 9, residents could not longer travel outside the state unless they own a residence in a different state, and, furthermore, Michiganders could not travel to or visit any residences or businesses outside of the listed exemptions. Failure to comply with this stay-at-home mandate is punishable by law. 

The Bill leaves Michigan residents confused on what is and isn’t permitted in their basic daily activities

As if this unprecedented forced limitation on individual movement and travel weren’t concerning enough, the arbitrary application of the Bill leaves Michigan residents confused on what is and isn’t permitted in their basic daily activities. In the original order, Michigan residents are allowed to walk around in their neighborhood, but they were effectively forbidden from tending to their garden- gardening centerswere were ordered closed across the state. However, after facing immense pressure and confusion over the order's lack of clarity, Governor Whitmer revised the order last week to allow what she now calls "low-risk" businesses like plant nurseries to re-open. The order also eases restrictions on traveling between residences.

Only Essential Workers Can Work — So, Are You Essential?

In addition to the painfully arbitrary restrictions on movement and travel, the Executive Order poses a severe, and many argue, unjust burden on Michigan business owners. The Executive Order strictly forbids the “sale of all non-essential, non-life providing and sustaining goods” and all in-person work that is “non-essential business” that doesn’t “provide and preserve life.” 

The Executive Order strictly forbids the “sale of all non-essential, non-life providing and sustaining goods.”

The Executive Order lists these “essential workers” or “critical infrastructure workers” to include those in healthcare, law enforcement, public safety, first responders, food and agriculture, energy, water and wastewater, transportation and logistics, and several more industries. It also permits volunteers in religious and secular non-profits to continue to provide necessary care to those particularly vulnerable to the virus. All businesses that are not listed as “essential” are strictly prohibited, and failure to comply with these state-wide standards is punishable by law. 

If these economic restrictions weren’t severe enough, the Executive Order gives the Michigan government the power to determine how many workers are “necessary” for the everyday functions of “essential business.” Employers of essential businesses are obligated to restrict their businesses to the “lowest capacity possible.” This means that businesses such as grocery stores are obligated to reduce their workforce to the lowest capacity, even if every employee desires to continue to work. 

What exactly is “lowest capacity?” This isn’t up for the employers to decide. Employers are required to file a request proving that each employee is “essential,” and the state will determine if the essential business is, in fact, operating at its lowest capacity. However, if the state believes that the employer is filing more “essential employees” than necessary to keep their employees working, the employer will be fined and charged with a misdemeanor on their permanent record, according to Section 14 of the Executive Order.

Employers are required to file a request proving that each employee is “essential,” and the state will determine if the business is, in fact, operating at its lowest capacity. 

Furthermore, many Michigan businesses are retaliating against Whitmer’s Executive Order, arguing that her forced closure of “non-essential” businesses is applied unfairly to industries that rely on spring and summer peak season, which now face the threat of permanent closure. Multiple lawsuits against Governor Whitmer are pending from landscaping and gardening industries, which have little to no person-to-person contact with their customers, and are facing the threat of permanent foreclosure if Whitmer’s restrictions aren’t lifted immediately.

Other towns in the Upper Peninsula of Michigan, one of the most sparsely populated regions in the U.S., rely primarily on their fishing industries. Since the Executive Order prohibits the use of motorized boats (merely due to the possibility of spreading the virus through using a gas pump), these fishing communities are facing the possibility of an economic catastrophe as they are prohibited by law from engaging in their primary industry. 

Laws Do Require Sacrifice, but It Must Be Appropriate and Proportionate Sacrifice

Whitmer’s Executive Order raises the timeless question concerning the nature and limits of the law. Law by its very nature is restricting—a sacrifice. It requires citizens to give up something or some freedom in order to pursue a better common good for the community. That is why lawmaking requires the proper articulation of both the restriction (what citizens are being required to give up) and the common good (what the law is attempting to attain for the betterment of the citizens).

Law requires citizens to give up something or some freedom in order to pursue a better common good for the community.

So what does this have to do with Whitmer’s Executive Order? Hillsdale, Michigan resident Nathan Lehman articulates this perfectly: “You have to show someone that their sacrifice means something, that it will ultimately yield a greater good.” The arbitrary articulation of Whitmer’s executive order has not only made it nearly impossible for Michigan residents to abide by the restrictions of the law, but furthermore, Whitmer’s executive order has failed to give a clear reason why the arbitrary restrictions are necessary; in other words, the reason why these arbitrary sacrifices of individual liberties are worth it. 

Justifying the enforced shutdown of major Michigan industries and individual choices through appealing to the spread of COVID-19 isn’t enough. Whitmer is obligated to set out a clear path of re-opening the economy with clear justification for why these temporary restrictions are necessary to attain the common good of the residents of Michigan. However, Whitmer has not only failed to set out a clear plan of reopening the economy and articulating the ultimate goal of her severe restrictions, but she has also implemented arbitrary restrictions that are stifling millions of Michiganders without clear justification. 

Closing Thoughts

As Whitmer has recently extended the “Stay Home, Stay Safe” Executive Order until May 15 at least, it should give us pause and make us consider the limits of our lawmakers’ constitutional power in the state of emergency. While lawmakers are trying their best to protect the public safety of their citizens, this doesn’t justify arbitrarily and indefinitely suspending basic civil liberties that are necessary for the flourishing of their citizens. To close, Lehman again summarizes the issue perfectly: “We have to be sure that our sacrifices are doing something. We have already lost so much. We cannot let American civil liberties be the next casualty.” 

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