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Attorney General Barr Wades Into State Shutdown Orders

Attorney General William Barr is determined to inject a dose of common sense into some states’ lockdown measures, even if it means taking their governors to court.

“We have to give businesses more freedom to operate in a way that’s reasonably safe,” Barr told Hugh Hewitt Tuesday in a radio interview. “To the extent that governors don’t, and impinge on either civil rights or on the national commerce…then we’ll have to address that.”

Barr didn’t single out any particular state, but you have to think he had Michigan Governor Gretchen Whitmer in mind as he spoke. What Whitmer has done has boggled the mind and sparked massive protests.

Gov. Whitmer’s initial stay-at-home order, issued March 23, was similar to actions taken by most of her peers in other states. On April 9, she sharply increased the restrictions, prohibiting Michiganders from visiting family – or anyone – in groups of any size. This order stood in stark contrast to the social distancing mandates and group limits of 10 that many other governors adopted. She also prohibited residents travelling to their own secondary properties in the state. She increased restrictions on businesses, and specified that those designated as “essential” could only sell items similarly designated.

Among the many problems with Whitmer’s orders are gross inconsistencies. In a statement on April 9, Whitmer said, “If you aren’t buying food or medicine or essential items, you shouldn’t be going to the store.” So home improvement stores have had to close off garden centers, rope off products like paint, carpet and furniture. You can’t even buy seeds. Unless they come in your marijuana. Among the things you can still buy in Michigan are pot, liquor and lottery tickets – you know “essential” items. Don’t get me wrong. I think those things should be for sale. But protecting sales of those items that are highly taxed, and bring in significant state revenue, while banning other products that people need when they’re stuck in their homes is a really bad look for the state.

Landscaping companies in Michigan have had to shut down because Gov. Whitmer’s order prohibits them from mowing, trimming bushes or doing other yard projects for customers. Yet, state employees can continue doing the same tasks in parks and other public properties. Of all the businesses that can effectively operate while socially distancing, it’s landscapers. They work outside, usually alone, often wearing masks. The hypocrisy and heavy-handedness of this order is astounding.

As a result, the Michigan Nursery and Landscape Association filed suit against the governor. They weren’t the only ones. Several fisherman are suing Governor Whitmer, as is the Michigan United Conservation Club. They claim that Whitmer’s prohibition of boats without motors is unreasonable. Residents owning second homes in Northern Michigan are also suing her because they are unable to access the property they own and pay taxes on.

These are the types of suits Barr says he may support. “We’re looking carefully at a number of these rules that are being put into place, and if we think one goes too far, we initially try to jawbone the governors into rolling them back or adjusting them,” Barr told Hewitt. “And if they’re not, and people bring lawsuits, we file statement of interest and side with the plaintiffs.”

While Barr didn’t rule out suing states directly, he leaned more toward that supportive type of approach. The United States Justice Department is a nice ally for a small business or industry group to have on their side when they go to court.

There’s evidence that indicates draconian measures, like those being deployed in Michigan aren’t effective. I live in North Carolina, where Governor Roy Cooper – a Democrat like Whitmer – has thus far enacted much more common sense restrictions. All North Carolina restaurants are closed except for takeout or delivery. Many businesses deemed “non-essential” are shuttered. People are getting fed up, and there was a protest near the state capital last week, but the restrictions here have been far more reasonable than in Michigan. Landscapers are still working. Home improvement stores, while enacting social distancing measures, are still selling plants and seeds and paint. People are free to travel, and while discouraged from gathering, aren’t being told not to visit family. Last weekend, I went to Lowe’s and bought fertilizer for my 80-year old mother and spent time working in her yard with her – all without fear of prosecution.

North Carolina has far fewer per-capita cases of COVID-19 than does Michigan. According to the daily state-by-state tracking of the virus, found here, North Carolina has 722 cases per 1 million residents (at the time of this writing). Michigan has 3,311 cases per 1 million residents. You can argue that those numbers make Michigan more desperate for restrictive measures if you choose, but equally, you can argue that they aren’t working.

Governors in other states are taking carefully calculated steps to reopen. Some North Florida beaches are now open. Georgia is lifting some restrictions this weekend, and letting businesses and consumers make their own choices, while still requiring spacing and distancing regulations. (More on that here). The governors of Colorado, South Carolina, Tennessee and Texas are also relaxing restrictions in the coming days.

The shutdown orders were intended to be temporary. How temporary is largely up to each governor. However, as Whitmer is learning, there are limits to the patience of her constituents – and to her authority. As A.G. Barr explained, “These are very, very burdensome impingements on liberty, and we adopted them, we have to remember, for the limited purpose of slowing down the spread…We didn’t adopt them as the comprehensive way of dealing with this disease….You can’t just keep on feeding the patient chemotherapy and say well, we’re killing the cancer, because we were getting to the point where we’re killing the patient. And now is the time that we have to start looking ahead and adjusting to more targeted therapies.”

The virus will likely be with us for a while. We have to learn how to coexist with it while we get back to some semblance of American society. It sounds like A.G. Barr is preparing to help make that happen.

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