by Scott McClallen
U.S. District Judge Paul Maloney on Friday denied a request for a temporary restraining order to block Michigan Department of Health and Human Services (MDHHS) Robert Gordon’s orders that is shuttering indoor dining service for three weeks.
The Michigan Restaurant and Lodging Association’s (MRLA) lawsuit alleged the order violated five separate clauses including the separation of powers and non-delegation clauses.
“We were disappointed not to have received a temporary restraining order of the DHHS Order this morning, as it means several more restaurant workers will be losing their jobs in the coming days as restaurants remain closed,” MRLA President & CEO Justin Winslow said in a statement.
“We look forward to the opportunity to make our case in court on November 30 and remain hopeful for a positive outcome that more effectively balances risk and human toll across Michigan.”
Maloney didn’t find the argument persuasive enough to block the order.
The emergency orders included:
- No in-person learning at high schools, colleges, and universities
- Closing theaters, stadiums, and arenas
- No dining in at restaurants and bars
- Shutting down organized sports, except professional sports
- Closing bowling centers, ice skating, indoor water parks
- Closing bingo halls, casinos, arcades
- No group fitness classes
“The incidental burden on interstate commerce resulting from the three-week closure is not excessive in relation to the local benefits,” Maloney wrote. “This second inquiry is a closer issue and the Court is mindful that the balancing inquiry must be deferential to the State’s decision.”
“Plaintiffs attempt to predict the economic consequences of this EO by pointing to the economic consequences of the earlier state-wide shut down followed by the months long ban on indoor dining,” Maloney wrote. “Today, the comparison is not persuasive.”
Maloney pointed out that Michiganders must wear a mask in all businesses that were allowed to stay open under the new order, such as liquor stores, barber shops and gyms.
But the nature of restaurants requires patrons to remove their masks.
Maloney also declined to issue a restraining order on the allegation the order violates the separation of powers and non-delegation provisions of the Michigan Constitution.
“It would be extraordinary for a federal judge to find a state statute unconstitutional on state-law grounds without the benefit of hearing from the State itself,” he wrote. “While the Court may have concerns about the statute, the Court can infer from Justice [David] Viviano’s concurrence that the Michigan’s Public Health Code does provide some legal basis for executive action in response to COVID-19.”
The industry already took a hit during forced shutdowns for months that led to about 2,000 restaurants closing permanently.
That number could climb to 6,000 more restaurants by spring under continued shutdowns, the MRLA said.
According to MRLA survey data, more than 40% of restaurants will temporarily close if dining rooms are closed, and roughly 250,000 restaurant employees will likely be laid off over the holiday season, without a robust state unemployment fund to act as a safety net.
The temporary restraining order was denied, but the lawsuit is still moving forward with a scheduled hearing on Nov. 30.
“We appreciate today’s ruling. Orders similar to this one have successfully stopped COVID surges in many other countries,” MDHHS Director Robert Gordon said in a statement. “If all of us mask up and avoid indoor gatherings, we will not only save thousands of lives and protect our frontline health workers, but we’ll also be able to enjoy indoor restaurant dining without fear.”
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Scott McClallen is a staff writer covering Michigan and Minnesota for The Center Square. A graduate of Hillsdale College, his work has appeared on Forbes.com and FEE.org. Previously, he worked as a financial analyst at Pepsi.
