Federal Judge Blasts Whitmer’s Lockdown Defense

Gov. Gretchen Whitmer’s assertion that her COVID-19 executive orders are based on the “best science” came under attack when a federal judge wrote that her lawyers could provide no factual basis for keeping the state’s gyms shut down.

United States District Judge Paul Maloney gave his June 19 rebuke of Whitmer and her legal team’s response to a lawsuit brought by several gym businesses.

Eighteen days earlier, Whitmer had announced the state’s gyms would remain under epidemic emergency lockdown, while other businesses, including restaurants and bars, were permitted to reopen.

At a June 1 press conference, Whitmer stated, “The fact of the matter is we’re learning an incredible amount and we are trying to be nimble and move swiftly with the best science and best information that we have so that we can save lives.”

Michigan Capitol Confidential has previously reported on the governor’s past statements that science has been at the core of her executive orders.

Whitmer said in a May 3 CNN interview, “We are going to listen to facts and science.”

In an April 14 interview with National Public Radio, the governor said, “We’re going to have to make decisions based on the best science, the best medical advice and what’s in the best public health of the people of our individual states.”

And Whitmer followed up with an April 21 op-ed in The New York Times, writing, “Each action has been informed by the best science and epidemiology counsel there is.”

Despite the governor’s consistent claim that she was making science-driven decisions, her team of lawyers had no answer for the federal judge when pressed for the data supporting specific provisions of some executive orders.

Maloney emphasized that the bar he faced to uphold Whitmer’s executive orders was extremely low but not zero. He said also that the bar was very high for him to grant the gym owners’ request to let them reopen.

“Plaintiffs [gym businesses] must show that there is no conceivable set of facts from which a rational relation can be drawn,” the judge stated.

“Plaintiffs only argue ... the continued closure of gyms is arbitrary and unreasonable because gyms are basically the only category of businesses that remain closed in Michigan, and because the State has not put forward any scientific data that supports keeping gyms closed while opening other closely similar activities and businesses, such as swimming pools, restaurants and bars, and ‘personal touch’ services like salons,” the judge wrote.

And then, the judge stated how little evidence Whitmer’s team would have to produce to win the lawsuit.

“Rather, this Court must uphold the Governor’s Executive Orders as long as they are supported by some relation to the public health.”

Maloney then emphasized how far short Whitmer’s lawyers fell of even that low standard.

“Unfortunately, on the record before it, the Court has not been presented with any evidence that shows a rational relation between the continued closure of indoor gyms and the preservation of public health,” he wrote. “While the standard is extremely deferential here—if the Court can conceive of any set of facts that would support the Orders, it must uphold them and deny the injunction—the Orders must still connect the challenged prohibition with some fact or facts.”

The judge’s rebuke also described how, in oral arguments, the governor’s lawyers struggled to produce any data or science supporting her position:

“At oral argument, the Court pressed Defendants [Whitmer’s legal team] on what data, evidence, or rationale supported the continued closure of indoor gyms. Defendants cited to the preambles of the Executive Orders and vaguely stated that indoor gyms are a ‘petri dish’ of infection, but Defendants could not point to any facts in the record to support that statement,” the judge wrote. “Defendants emphasized the low bar: all that needed to be presented was a reasonably conceivable set of facts that connected the continued closure to protecting the public health. But when asked, even counsel was unable to state a rational basis to support the position that indoor gyms must still be closed. Defendants merely reiterated that a threat of transmission exists at indoor gyms, and the threat of transmission must be minimized.”

The judge continued: “Again, when asked at oral argument what that rational relation for continued closure of gyms is ... Counsel could not articulate a reason beyond the bare assertion that gyms are dangerous.”

Maloney even cited Whitmer’s oft-used claim of science and data as the basis for her orders.

“In the Governor’s own words, those choices have been based on data and science, and the Court commends and respects that. But when asked what data, science, or even rationale supports the continued closure of indoor gyms, Defendants presented nothing beyond ‘trust us, they’re still dangerous.’ From that vague statement and nothing more, the Court cannot create a set of facts that rationally connects the restriction with the legitimate government interest of protecting the public health.”

The judge also turned one of the arguments presented by the governor’s lawyers against them.

They had used a slippery slope argument to characterize the consequences that would follow if the judge granted the gym owners’ petition to let them reopen, suggesting an onslaught of lawsuits from other businesses aggrieved by Whitmer’s lockdown orders.

But the judge pointed to a different “slope.”

“If Defendants can open or close any sector of the economy, at will, with nothing more than a vague reference that it is ‘dangerous,’ the potential for abuse is palpable,” the judge wrote.