04/29/2020
𝗪𝗲 𝗔𝗿𝗲 𝗪𝗶𝘁𝗻𝗲𝘀𝘀𝗶𝗻𝗴 𝗮 𝗠𝗼𝗱𝗲𝗿𝗻 𝗗𝗮𝘆 𝗧𝗲𝘀𝘁 𝗼𝗳 𝗢𝘂𝗿 𝗖𝗼𝗻𝘀𝘁𝗶𝘁𝘂𝘁𝗶𝗼𝗻
Remember sitting in your high school government class and learning about the Constitution? Having graduated from the University of Michigan Law School and having now practiced law for over 36 years, I am personally amazed at the beauty and genius of our Constitution, which is being tested right before our eyes with COVID-19 issues. In our Constitution, the Fourteenth Amendment states:
“No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal
protection of the laws.”
On April 27, 2020, Attorney General William Barr released a Memorandum, “Balancing Public Safety with the Preservation of Civil Rights”. https://www.justice.gov/opa/page/file/1271456/download
While balancing public safety with the protection of constitutional rights enjoyed by all citizens is the objective, Attorney General Barr describes how overbearing state police powers can be unconstitutional:
“. . . the Constitution also forbids, in certain
circumstances, discrimination against disfavored speech
and undue interference with the national economy. If a
state or local ordinance crosses the line from an
appropriate exercise of authority to stop the spread of
COVID-19 into an overbearing infringement of
constitutional and statutory protections, the Department
of Justice may have an obligation to address that
overreach in federal court.”
Most significantly, Attorney General Barr then appoints United States Assistant Attorney Eric Dreiband and none other than Matthew Schneider, United States Attorney for the Eastern District of Michigan, to monitor state and local policies and take corrective action, if necessary.
When testing the Executive Orders of a State (or locality), the focus will be on these questions: 1) Is the State’s police power necessary; and, 2) Is the State’s police power being exercised in a reasonable and not arbitrary way?
Of all people to appoint, why would the United States Attorney select Detroit’s own Matthew Schneider? Attorney General Barr is sending a clear message to Michigan that its use of police powers may fail to satisfy the “reasonable and not arbitrary” test. The White House is embroiled in a combative relationship with the Governor’s Office but I encourage both sides to move toward easing restrictions in line with a majority of states and to avoid litigation, which will only serve to cause increased economic pain to us all. In my opinion, it is more fruitful to discuss this issue by examining the Constitution than by politicizing every move and calling each other names. The only question worth debating is whether the Executive Orders are necessary and contain reasonable (and not arbitrary) provisions. If a provision fails to satisfy this test, it should be removed. I know who will win this argument, not the conservatives or the liberals, the Constitution will prevail.
