The federal judge who assigned the case seemed somewhat in line with the restaurant coalition’s economic arguments.
Michigan restaurants have brought the state governor Gretchen Whitmer back to federal court, claiming a ban on dine-in services is unconstitutional and ill-considered.
US District Judge Paul Maloney made an oral statement on Monday, November 30th, according to MLive.com. At the end of the hearing, Maloney promised to make a statement “as soon as possible”.
The lawsuit, according to MLive.com, was filed by the Michigan Restaurant and Lodging Association along with two industry groups. Together, they are suing the Michigan Department of Health, claiming a three-week “break” from eating indoors is illegal.
The so-called hiatus, which ends on December 8, is part of the state’s efforts to reduce an increase in winter time in coronavirus cases.
For most of the year, Michigan’s strategy for reducing the coronavirus was led by Democratic Governor Gretchen Whitmer. While the state’s Republican-held legislature refused to crack down on the pandemic, Governor Whitmer cited the emergency health laws to issue a number of executive orders. These orders required, among other things, the closure of certain non-essential businesses.
Whitmer’s powers, however, have been largely revoked by the Michigan Supreme Court – and their bans and related penalties have been lifted retrospectively.
Then-Senator Gretchen Whitmer gave a speech in 2011. Image via Flickr / User: swskeptic. (CCA-BY-2.0).
Since then, Whitmer has delegated the authority to create and enforce restrictions to the DHHS. Under the provisions of MCL 333.2253, the division manager may “prohibit the gathering of people for any purpose” during a public health crisis.
Critics of Whitmer and DHHS Director Robert Gordon said the law itself was unconstitutional.
Kelli Mulder, an attorney for the restaurant associations, said her customers realized the severity of the coronavirus but believed strict bans are no longer a viable solution to the pandemic.
“We don’t argue with the fact that there is a time and place for emergency orders like we saw in March, April, May or even June,” Mulder said. “But we are in a different position now. In the meantime, states should have figured out how constitutional rights could be better protected. “
Mulder went on to claim that restaurants were not contributing significantly to the spread of COVID-19 while also claiming that the state should not give up the economic interests of Michigan-based companies.
Judge Maloney noted that there is one not inconsiderable change that Michigan will likely extend its “hiatus,” causing some restaurants to go out of business.
“I don’t think it’s a secret that Thanksgiving and Christmas holidays are a big part of their annual business for the restaurant and bar industry,” said Maloney. “And with an extension through the New Year it can’t be back.”
Separately, health and human services attorney Neil Giovanatti argued that the department has a public health responsibility – and that restaurants and bars that comply with state orders will reopen faster.
“We know in Michigan that indoor dining contributed to the spread of COVID,” said Giovanatti. “The faster we can get rid of the virus, the faster restaurants and bars can reach full capacity without any restrictions.”
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