April 15, 2020
By Mike Brownfield

“It’s not a suggestion. It’s an order.”

In a few short words, Michigan Governor Gretchen Whitmer summed up her attitude toward those who are questioning the rationale behind her recent series of stay-at-home mandates designed to halt the spread of COVID-19. Today, as 1 million Michiganders have filed for unemployment due to the coronavirus lockdown, protesters in cars and trucks lined up for miles to bring their anger and frustration to the state capitol.

Whitmer’s orders are wide-ranging, confusing, contradictory, and ever-evolving. “Non-essential” workers must remain home. Family members are prohibited from visiting other family members. Property owners are banned from traveling to vacation homes—and if they’re already at their vacation home, they are prohibited from returning to their primary residence. Violations of the stay-at-home order are subject to a new $1,000 civil fine, which is on top of criminal punishment with a $500 fine and 90 days in jail.

State road construction is ongoing, yet other construction must cease. Michigan auto dealers were permitted to keep their service centers open, but the sale of cars was prohibited—that is, until industry complained and Whitmer reversed course, permitting the online sale of vehicles. 

Walking outdoors is permitted and recreational activities are encouraged, but people are asked to maintain proper social distance. However, golfing is banned, along with boating. (Boating was first deemed to be legal, but then motor-boating was banned, and then all boating was banned.) Gatherings of groups larger than 50 people were banned, but then an exception was made for religious gatherings, but then Whitmer implored people to stay home on Easter Sunday. “It’s really important that we all observe the stay-at-home order,” she said. “Now is the time to make use of technology. Now is the time to have the introspection and to be mindful of what Easter means, right?”

Shopping for “non-essential” items is prohibited, though what constitutes “non-essential” has proven to be vague and confusing. While the sale of marijuana, liquor, and lottery tickets is legal, the sale of carpet or flooring, furniture, and garden supplies are illegal. 

“What—they’re not selling paint?” one man said as he walked into Home Depot, as Bridge Magazine reports. “I just don’t understand. You can put up drywall, but you just can’t paint it right now because that’s not essential.” At another hardware store, a woman was reportedly denied when she tried to purchase trash bags since the store concluded that they were a non-essential item. And at a Walmart, a notice was displayed prohibiting the sale of baby car seats, which the store likewise deemed to be non-essential. 

The confusion isn’t surprising, given the language of the regulation, which requires: “By April 13, 2020, refrain from the advertising or promotion of goods that are not groceries, medical supplies, or items that are necessary to maintain the safety, sanitation, and basic operation of residences.” Are trash bags necessary to maintain the sanitation of a residence? Yes, of course. But is a baby car seat necessary for the basic operation of a residence? Arguably not, unless “residence” is broadly construed to include a vehicle. 

Either way, it’s left up to the retailer to parse the legalese of the order—unless, of course, the issue gets enough attention that the government is forced to change course. That’s what happened with the baby car seats issue when media personality Meghan McCain tweeted her outrage, prompting a reply from the Governor and an apparent amendment to the state’s frequently asked questions webpage, which says that the sale of car seats is not banned. 

Let there be no doubt: Sensible measures are necessary to protect public health and to combat COVID-19. But Governor Whitmer is engaging in an experiment of regulation in real time, where broad and vague mandates are unleashed on the public, and where revisions and clarifications are made on the fly. It’s policymaking by fiat, and it has left Michigan citizens sitting in limbo and subject to the whims of the state. No wonder they’re protesting their government. But will the Governor listen? 

Mike Brownfield is Communications Director at the Goldwater Institute.

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