Growing opposition ruptures unity behind Whitmer's COVID-19 response

Lansing — Once a source of unity, Michigan Gov. Gretchen Whitmer's response to the COVID-19 pandemic is facing growing opposition from critics who say she's gone too far.

The pushback mounted Tuesday as thousands signed an online recall petition against the Democratic governor, four residents sued in federal court in a bid to unravel parts of the stay-at-home executive order as unconstitutional overreaches and six Michigan U.S. House Republicans urged changes as they called her new order "far too restrictive."

The backlash is set to continue Wednesday when the Michigan Conservative Coalition plans a noon rally at the Capitol in Lansing to protest the governor's order during a vehicle-bound demonstration they're terming "Operation Gridlock."

"Instead of needlessly shutting down large sectors of the economy and further restricting the lives of residents, we believe amending Executive Order 2020-42 can achieve our shared goal of protecting public health while also beginning the slow process of resuscitating our economy," concludes the letter from Republican U.S. Reps. Fred Upton, Tim Walberg, Bill Huizenga, John Moolenaar, Paul Mitchell and Jack Bergman.

Independent U.S. Rep. Justin Amash of the Grand Rapids area separately urged the governor to "immediately" reassess her approach, saying recent measures "provide marginal benefits at best, while substantially heightening frustration and resentment."

Whitmer's supporters counter that she's taking the aggressive steps needed to protect health care workers and stem the spread of a virus that's already killed 1,768 Michigan residents. Michigan has the fourth most cases of COVID-19 in the country, according to the Johns Hopkins University & Medicine Coronavirus Resource Center.

Whitmer on Thursday tightened and extended the stay-at-home policy that's been in place since March 23, adding new prohibitions on travel between homes, garden centers at large retail stores and motorized boating. Her order also does not include updated guidance from the federal government that would have allowed more people to go to work during the crisis.

Like many states that have cited the federal guidance, the governors of Ohio and Indiana included the new guidance, which classifies landscapers and those in home construction as "critical" workers, when they extended their stay-at-home orders.

In a Tuesday telephone town hall, Whitmer acknowledged people were stressed and "lashing out a bit."

"I am mindful of the hardship that’s been imposed on people; I know what this has done to our economy," she said. "But at the end of the day, I’ve got to listen to medical experts to know when and how it's safe to reengage our economy. And that’s precisely what I’m going to do.”

Longtime legislative supporters defended her actions as necessary.

"These are hard times and we all know that," said Senate Minority Leader Jim Ananich, D-Flint, during the telephone town hall. "We’re looking for strong leadership, and I think we’ve seen that in Gov. Whitmer. She’s doing everything she can to keep us safe.”

The backlash exposes the tension between taking extraordinary actions in the name of public health and observing constitutional limits on people's constitutional rights. 

In the lawsuit filed in U.S. District Court in Detroit, three Oakland County residents and one person from Roscommon County contended provisions of Whitmer’s stay-at-home order are “arbitrary, capricious, irrational and abusive.” They argued she has violated First Amendment rights of association as well as Fifth Amendment protections against the government taking of private property rights.

But many health professionals praise the extended stay-home order as "the wise thing to do."

"While the work in and around Detroit is intense, we are starting to see signs of improvement, and the stay-home order and peoples’ cooperation with it has allowed other areas of Michigan with fewer known cases to prepare and ready supplies and facilities should they be needed," said Dr. Mohammed Arsiwala, president of the Michigan State Medical Society. 

Dissent from D.C.

More than a week ago, Whitmer said the state's bipartisan congressional delegation had been "fantastic" in dealing with the virus. It consists of two Democratic U.S. senators, seven Democratic House members, six GOP House members and one independent House lawmaker.

But Tuesday's congressional letter was a public gesture of resistance signed by Upton of St. Joseph — the delegation's senior Republican who has bucked President Donald Trump and promoted bipartisanship — as well as Walberg of Tipton, Huizenga of Zeeland, Moolenaar of Midland, Mitchell of Dryden and Bergman of Watersmeet.

Under Whitmer's new order, entire sections of stores are closed "while customers can still access other areas of the same building," the letter said.

"Some prohibited activities that never require close contact with other individuals during normal operations are now prohibited entirely," the letter added.

The lawmakers say the federal Centers for Disease Control and Prevention has "issued clear guidance to mitigate the transmission of the virus."

"By following this guidance businesses can ensure people remain six feet apart, properly sanitize, set up sneeze guards and protective barriers, promote proper handwashing and cleaning techniques for their employees, while also protecting customers with similar guidelines," the lawmakers said. "Individuals can practice proper social distancing and mitigation techniques while avoiding activities that jeopardize the health of themselves or others."

Whitmer's office noted the deaths linked to the virus in Michigan, prompting the need for continuing and new restrictions on movement. 

"We’re going to get through this, but the best thing we can do right now is stay home and stay safe to save lives," said Whitmer's spokeswoman, Tiffany Brown, on Tuesday.

U.S. Rep. Debbie Dingell, D-Dearborn, defended Whitmer in a separate campaign email headlined "Humanity and Compassion" and said the governor's decisions were "tough, but necessary" to flatten the curve.

"Hospitals in southeast Michigan are able to stay caught up or even ahead of the crisis, with many hospitals reporting that they currently have enough beds and ventilators for those who need them," Dingell said. "We are also protecting rural communities from outbreaks, where health care systems are not equipped for major outbreaks."

Likewise, U.S. Sen. Gary Peters, D-Bloomfield Township, said Tuesday that Whitmer is "doing a great job." Countries that worked aggressively and early to combat the virus had been more successful than those who waited to respond, Peters said.

"She leaned into this very aggressively upfront," he said.

Recall petition surfaces

But more than 233,000 people had signed a Change.org petition calling for Whitmer’s recall as of 8 p.m. Tuesday to protest the first-term Democratic governor’s closing and banning of non-essential businesses and activities.

The grassroots petition created about three weeks ago gained more than 100,000 signatures in the past few days, some of the angst stemming from boaters and fishermen banned from using motorized boats while in quarantine. 

“She has lied since day one with her #Fixthedamnroads which she has failed to do anything in this regards,” the change.org petition said. “The response to #PFAS was negligence and completely removing funding for #PureMichigan clearly shows her lack of anything positive for the State of Michigan.”

The people whose opinions matter now are health care workers, said Adrian Hemond, CEO of the political consulting firm Grassroots Midwest who worked for Democrats in the Legislature. And they say Whitmer is doing a good job, he said.

Hemond contended the opposition to Whitmer's actions is being driven by people who dislike her and were waiting for a reason to activate and ideological business groups that want to get back to work.

“If she makes any major mistakes then they’re well poised to capitalize," said Hemond, adding "she hasn’t yet.”

Lawsuit hits 'stripping ... rights'

The federal lawsuit filed Tuesday by lawyer David Helm argued provisions of Whitmer's stay-at-home order violate the First Amendment right to freedom of association and the takings clause of the Fifth Amendment, which entitles individuals to compensation when their property rights are taken.

“Never in the modern history of the United States — even in war time — has such an invasive action stripping citizens of fundamental rights been taken by a government order,” the lawsuit said. 

The suit seeks a temporary restraining order and permanent injunction on the executive order and an acknowledgment by the judge that the order violates constitutional rights. The suit also seeks money, including attorney fees and costs and compensatory and punitive damages. 

Whitmer's spokeswoman, Brown, declined to comment on the lawsuit.

The lawsuit runs up against firmly established powers available to the governor in the interest of public health in an emergency, said Bob Sedler, a Wayne State University constitutional law professor. 

"As far as the Constitution is concerned, the state of Michigan has enormous discretion in deciding what is necessary during a pandemic to protect the public health, safety and welfare," Sedler said. "The suit’s not going to go anywhere.”

The lawsuit alleges that, under the order, Roscommon County resident Jerry Frost can't visit his girlfriend of 14 years because they don’t reside in the same household. The restriction violates Frost’s right to associate, according to the suit. 

The order also closed Contender’s Tree and Lawn Specialists Inc. in Oakland County, owned by Steve Martinko, in the middle of spring chemical application after the business purchased “hundreds of thousands of dollars” of supplies for the work, according to the lawsuit. The company laid off 15 workers on the day the executive order took effect.

The Oakland County company was ordered to close even though it could “safely operate while still observing social distancing,” the lawsuit said. Whitmer's order is a “regulatory taking” without state compensation “for those who suffered substantial — and perhaps total — diminution of value in their property interests as a result,” according to the lawsuit.

Similarly, Oakland County residents Michael and Wendy Lackomar were at their cabin in Sanilac County when the order went into place and aren’t permitted to return to their Oakland County residence, the lawsuit said. 

Earlier this month, a protester outside an abortion clinic in Detroit filed a lawsuit arguing constitutional violations after he was ticketed for violating the governor's stay-home order. The governor later clarified that her stay-home order did not apply to protesters maintaining social distancing. 

Western Michigan U.S. District Judge Janet Neff signed Tuesday a stipulated agreement in which the city of Detroit agreed to dismiss the citation and dismiss the lawsuit with prejudice.

eleblanc@detroitnews.com 

cmauger@detroitnews.com