Lawsuit: State Can Lock Us Down, Not Lock Us In

Some students at the University of Michigan Law School have filed a federal lawsuit, alleging that Gov. Gretchen Whitmer violated their constitutional rights when she issued Executive Order 2020-42, which banned state residents from traveling between two residences. The order was one of 75 orders Whitmer has issued in response to the COVID-19 pandemic.

According to a press release issued with the lawsuit filing, the order violates property owners’ right to intrastate travel under the due process and equal protection clauses of the Michigan and U.S. constitutions. The suit seeks a declaratory judgment and nominal damages of one dollar.

The governor’s executive order reached “beyond her legitimate authority” and imposed “arbitrary, unjustified restrictions” on residents’ rights, said Brian Weber, one of the students involved in the lawsuit.

“In this regard, it seemed like there had to be a limit on even the governor’s broad emergency powers,” Weber told Michigan Capitol Confidential. “We started researching because we were interested in finding that limit. We think we found it under the Michigan and U.S. constitutions, and that’s what led to the suit.”

Andrew Fink, one of the three lawyers working with the students, explained that not only did the executive order fail to give due regard to people’s right to travel, it arbitrarily treated similar situations differently.

“A person could travel across the state to care for a friend’s pet, but not to visit a second home,” he said. “And a resident from another state could drive hundreds of miles into Michigan to visit a second home, but a Michigan resident couldn’t make a shorter drive for the same reason.”

That’s the situation plaintiff Lyn Allen faced. Despite having isolated herself at home for more than 14 days without exhibiting symptoms of COVID-19, Allen was prevented from legally traveling from hard-hit Wayne County to a timeshare property in northern Michigan, where there have been few COVID-19 cases. But Allen’s co-owners in the timeshare, who are residents of Indiana, were able to freely cross the state line and travel within Michigan to visit the property.

“I think Michiganders would be quite surprised to learn that when they travel to home or work, it’s not a right, it’s a privilege granted to them from the government or the governor,” said Jacob Weaver, another law student involved in the case.

According to Weaver, there is no precedent for a lawsuit of this nature because this is the first time in Michigan history that the government has imposed a blanket ban on intrastate travel.

“It’s something that’s just so obvious it’s never had to be litigated before,” he said.

While the governor has repealed this particular executive order, Weaver said he believes the suit is still important for establishing the principle in jurisprudence.

“One of the best things about this lawsuit is that unlike a lot of lawsuits, we’re not asking for an injunction or to halt it en masse,” he said. “We’re asking the court to retrospectively say that in this situation, the governor went too far, and to set boundaries so that governors know what their limits are going forward.”

Weaver said the lawsuit is about protecting individual rights, not defying the governor.

“This has nothing to do with politics and everything to do with constitutional rights and the power of the executive in a time of crisis,” he said.