Whitmer loses yet another round in court

Things haven’t been going well lately for Michigan Governor Gretchen Whitmer as various citizens go to court in opposition to her stringent shutdown orders in response to the pandemic. That trend continued this week when the state supreme court ruled in favor of a barbershop owner who decided to reopen his business in defiance of the Governor’s executive orders. While a lower court had sided with the state’s right to restrict such operations, the high court ruled that 77-year-old Karl Manke has “the right to work.” And this one wasn’t even close, with the court delivering a unanimous decision. (Deadline)

In a ruling that could have future ramifications in the event a second wave of coronavirus strikes, a 77-year-old Michigan barber has won a legal battle against Michigan’s Gov. Gretchen Whitmer, who forced him to shutter his business.

Barber Karl Manke defied shutdown orders from Whitmer and reopened his shop despite state orders prohibiting retail reopenings. Whitmer, who has drawn heavy criticism for her refusal to bend to demands on reopening businesses, subsequently pulled Manke’s license, heavily fined him, and denounced his activity.

But the Michigan Supreme Court has ruled unanimously that he has the right to work.

The court was rather pointed in how they structured their ruling, delivering a barely veiled shot at Whitmer’s governing style in the process. They acknowledged that the executive branch does indeed have to power to regulate such activity during a time of crisis, but said that such decisions must be “made according to the rule of law, not hysteria.”


The Deadline article makes a very good point in noting that this decision could potentially have serious ramifications for other states facing the same debates, particularly if there’s a major second wave of the novel coronavirus coming our way later in the year. Since the first of these executive orders began rolling out in March and April, I’ve been issuing notes of caution about the limits of executive authority during times of declared emergencies.

The courts have historically ruled in favor of executive authority above and beyond what the Constitution normally allows, but there are limits. Attempting to extend such authority after the crisis can be reasonably be considered to have passed will bring the wrath of the judicial branch down upon your head quickly. That wasn’t the case here, as it would be tough to argue that the virus has been eliminated to the point where there is no longer a danger of major outbreaks.

But the tougher call to make is when the courts have to decide when aggressive restrictions become “too aggressive.” These will always be handled on a case-by-case basis and individual judgment calls will have to be made. That seems to be the case with Mr. Manke’s barbershop. That type of operation was deemed to be nonessential by the governor and barbershops and salons wouldn’t end up being scheduled to reopen until one week from now on June 15th. So was the court saying that Manke could claim that his business was essential or were they saying that the shutdown had extended to the point where the damage to him outweighed the risk to society?

We don’t know because the opinion doesn’t offer that level of detail. But the fact that they described Whitmer’s order as being “hysterical” in nature would tend to make you believe that she had pushed the limits of endurance for small business owners. I don’t know if this ruling will have that much of an impact nationally, however. First of all, it’s unclear if the Supreme Court would affirm the decision if they were asked to. And courts in other states are under no obligation to take this ruling as precedent. In any event, we clearly can’t afford to terminate executive authority during a legitimate crisis entirely, but we will continue to need the courts to keep an eye on things and make sure such power isn’t abused.