The decision by three health-care practices in Michigan to join the ranks of businesses fighting against their state’s emergency Covid-19 orders may bring added heft to a growing tide of litigation that is testing the bounds of executive power.
Officials in some states have chosen to extend stay-at-home orders and keep nonessential businesses shuttered in an effort to stop the spread of the coronavirus, leading to protests and lawsuits around the country from opponents eager to get back to work.
But the case filed this week in the U.S. District Court for the Western District of Michigan against Gov. Gretchen Whitmer (D) appears to be the first brought by health-care practices and a patient. Legal scholars say it underscores an emerging question: How long can states keep businesses closed without legislation?
“A specific feature of these emergency orders is that the more successful they are, the longer they might be needed,” said Lindsay Wiley, a law professor at American University Washington College of Law.
“As we enter that prolonged phase of the pandemic, I do think there are strong legal and political arguments that at some point the legislative branch needs to weigh in,” she said.
Liquor stores, tattoo parlors, restaurants, and even campgrounds have brought challenges in recent weeks against state orders that deem them nonessential.
The health-care practices in this case also are challenging that designation, but Wiley said they carry more clout.
“The general public doesn’t tend to view them as profit-motivated businesses in the same way they view dog groomers, cruise operators, or restaurants,” she said.
Whitmore on March 20 ordered hospitals, freestanding surgical outpatient facilities, dental practices, and state-operated outpatient facilities to implement a plan to postpone all nonessential procedures until the end of the Covid-19 state of emergency.
“Our health care workers are on the front lines every day protecting Michiganders during these extraordinary and difficult times,” she said in a statement at the time. “By postponing all non-essential medical and dental procedures, we expect to reduce the strain on the health care system and protect people.”
The health-care providers say the order stops them from administering preventative care. The one patient named in the complaint says he can’t get the knee surgery he needs and is suffering from debilitating pain.
“We’re trying to make the best and strongest legal arguments we can,” said Patrick Wright, vice president for legal affairs at the the Mackinac Center Legal Foundation, a free-market think tank backing the litigation.
“If we have an interest where lives are at risk, I think it gives us the best opportunity to present the legal arguments we’re trying to make,” Wright said.
Those arguments include allegations that Whitmer lacked authority to re-declare a state of emergency beyond April 30 without action from the Michigan Legislature and by doing so violated the separation of powers clause of the state constitution.
In addition, the lawsuit alleges Whitmer’s orders violate the commerce clause and due process rights under the U.S. Constitution.
But one law scholar called those claims frivolous.
“When it comes to the federal arguments, there certainly are times when the state oversteps its bounds under the federal Constitution, but this is not one of those cases,” said Sara Rosenbaum, a health law professor at George Washington University. “This is a case where she is acting to control an emergency within her borders that is literally killing her own citizens.”
Whitmer’s office said its practice is not to comment on pending litigation.
Similar cases brought in state and federal courts across the country have been met with varying degrees of success.
The Wisconsin Supreme Court on Wednesday tossed out an emergency order shutting down the state, ruling the health services secretary didn’t follow statutory rulemaking procedures when she issued the order. The U.S. Supreme Court, however, refused to lift Pennsylvania’s shutdown order that was challenged by businesses and a political campaign.
But whether Whitmer exceeded her statutory authority is a question that’s better suited for state court rather than federal court, one law professor said.
The Michigan Court of Claims on Friday is scheduled to hear a challenge from the state’s Republican-led House that asks precisely that question, said Samuel Bagenstos, a professor at the University of Michigan Law School.
“I think the governor is exercising the power state law gives her, and it’s the power state statutes passed by the legislature have given her,” he said.
The case is Midwest Inst. of Health, PLLC v. Whitmer, W.D. Mich., No. 20-cv-414, complaint filed 5/12/20.