Law Professor Says Congressman’s Lawsuit Against Gov. Whitmer Is “A Political Statement, Not a Legal Statement”

Rep. Paul Mitchell says the governor’s stay at home order violates his civil rights to travel, exercise political speech, and freedom of association.

Michigan Congressman Paul Mitchell (MI-10) is suing Governor Gretchen Whitmer in federal court. His suit alleges that Gov. Whitmer’s management of the coronavirus pandemic has resulted in violations of Mitchell’s constitutional rights to travel, exercise political speech and freedom of association by meeting with constituents.

The Lapeer County Republican says he wants a judge to intervene and “define the limits of the state’s police power.”

“The question is whether the imposition on liberty is something that is reasonable and appropriate in light of the public health concerns.” — Sam Bagenstos, University of Michigan Civil Rights Law Professor

Sam Bagenstos is a University of Michigan Civil Rights Law Professor and former Deputy U.S. Attorney General. He says Mitchell’s lawsuit likely won’t be successful. “This is a case where most of the arguments are just frivolous and are going to be knocked out of court almost instantly. And the ones that aren’t just frivolous are really weak,” says Bagenstos.

According to Bagenstos, the challenge Mitchell faces in this lawsuit is the “very substantial deference to public health authorities in the context of responding to a public health crisis. There’s no question there’s a public health crisis here,” says Bagenstos, “There’s a clear connection between what Governor Whitmer has done and responding to the public health crisis. And so it’s unlikely that representative Mitchell is going to succeed in this lawsuit.”

Click on the audio player to hear Sam Bagenstos’s conversation with WDET’s Russ McNamara and read excerpts from the Q&A below, edited for length and clarity.

WDET: Is there any point that you see that might give a judge pause and warrant an injunction?

Sam Bagenstos: I don’t think so. The claims that are made in this lawsuit are so general. They’re basically saying that the orders issued by Governor Whitmer effect Paul Mitchell’s liberty, which they certainly do to some extent. But the question is whether the imposition on liberty is something that is reasonable and appropriate in light of the public health concerns. I think that Governor Whitmer is going to make a very compelling case that yes, they are and that given the deference that public health officials should get from courts during an emerging and ongoing crisis, that these orders should be upheld. I really don’t think there’s much of anything here. I think this is essentially a political statement, not a legal statement.

Was there a particular reason Mitchell chose to file his lawsuit in the Court for the Western District of Michigan instead of a court closer to Lapeer County?

It’s well known in the State of Michigan and in the legal community that the Western District of Michigan has only judges who are appointed by Republican presidents, whereas the Eastern District of Michigan has a number of democratic appointees on the bench. So if you want to make sure that you have a Republican appointee hearing your case, you pretty much want to file the suit in the Western District.

Following last week’s protest in Lansing, it looks like there’s going to be a push to ban firearms in the State Capitol building. Will that infringe on the right to bear arms?

The courts have said that restrictions on carrying firearms in so-called “sensitive locations” are constitutional under the Second Amendment. Even Justice Scalia said that in his opinion for the Supreme Court in DC v. Heller, which is sort of the opening of all of our modern Second Amendment jurisprudence. If you go to almost any courthouse in the country, you will find that you have to walk through a metal detector and you can’t carry a firearm. Many legislatures have and other locations have banned guns. It’s really a political question, not a legal question.

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  • Russ McNamara
    Russ McNamara is the host of All Things Considered for 101.9 WDET, presenting local news to the station’s loyal listeners. He's been an avid listener of WDET since he moved to metro Detroit in 2002.