This would be funny if there probably wasn’t four votes on the Supreme Court for the basic argument already:
In response to the COVID-19 pandemic, the Governor of Michigan has, over the past two months, issued over 100 executive orders that impose sweeping limitations on nearly all aspects of life for citizens of Michigan, significantly impairing in some instances their ability to maintain their economic livelihoods.
According to the lawsuit, the governor’s orders are arbitrary and discriminate against their businesses by treating them differently than other similarly situated businesses. Although the governor’s actions have required the plaintiffs to close or significantly restrict their businesses for over two months, the orders have allowed similar occupations to operate.
The plaintiffs include a real estate brokerage, a lawn and property maintenance company, an automotive glass exporter, an engine oil and auto parts distributor, a small jewelry store, a dental office, and an association of car washes. The plaintiffs brought their case in the Western District of Michigan.
“Our Constitution is enduring, and it is critically important that government comply fully with the Constitution in times of crisis,” said Assistant Attorney General Eric Dreiband of the Civil Rights Division. “The Constitution permits appropriate state and local government restrictions to protect the health and safety of Americans, but it does not permit arbitrary limits that limit the right of all people in our country to be treated equally and fairly by the government.”
“While we appreciate the governor’s serious responsibility to safeguard public health through this pandemic, the Department of Justice has an obligation to call attention to the contours of the rights enshrined in the federal Constitution and to counsel against arbitrary restrictions on liberty,” said Andrew Birge, U.S. Attorney for the Western District of Michigan.
“I have no doubt about the governor’s good intentions, but the Executive Orders arbitrarily discriminate by allowing some businesses to operate while similar businesses must close or limit their operations—and if they refuse, they face fines and possible jail time,” said Matthew Schneider, U.S. Attorney for the Eastern District of Michigan, who, with Assistant Attorney General Dreiband, is overseeing the Justice Department’s effort to monitor state and local polices relating to the COVID-19 pandemic. “Under the Governor’s Orders, it’s ok to go to a hardware store and buy a jacket, but it’s a crime to go inside a clothing store and buy the identical jacket without making an appointment. That’s arbitrary. As important as it is that we stay safe during these challenging times, it is also important to remember that we do not abandon our freedoms and our dedication to the rule of law in times of emergency.”
In its statement of interest, the United States explains that the facts alleged by the plaintiffs could amount to violations of the Commerce Clause and the Equal Protection Clause of the Constitution.
Who amongst us does not go to Lowe’s for most of their apparel shopping, or purchase essential hardware items at Old Navy?
So, to summarize the positions of the Trump DOJ:
- Rules designed to stop African-Americans from voting do not violate the equal protection clause.
- Rules based on the premise that grocery stores offer more essential services than clothing stores violate the equal protection clause.
The idea that it’s irrational even in the colloquial sense — let alone in the constitutional sense, which requires finding that there is no possible reasonable argument to be made in favor of the classification — to treat stores that sell clothing as offering less essential services than stores that sell hardware is flatly absurd. The idea that pandemic response, an absolutely quintessential exercise of the police power retained by the states, violates the dormant commerce clause is if anything even more ridiculous. Can we please stop treating elite Republican lawyers as if they’re in any way materially different than Donald Trump Republicans now?