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In a defeat for lockdown-loving Michigan Gov. Gretchen Whitmer, a state judge has ruled that Whitmer’s Department of Health and Human Services acted unconstitutionally when it imposed restrictions on restaurants during COVID.
The Iron Pig Smokehouse had reportedly defied various administrative rules by remaining open for indoor dining and not requiring face masks and was hit with a $5,000 fine as well as temporary food and liquor license suspensions. The eatery subsequently sued to challenge the state sanctions.
“[Judge Colin] Hunter said the section of the health code that allowed the director of the state health department to issue emergency orders didn’t pass constitutional muster because it failed to include any standards on the scope or duration of the director’s authority,” the Petoskey News-Review explained.
In a 31-page decision that is very likely to be appealed to a higher court, the Otsego County judge wrote that the relevant Michigan statute “is clearly an constitutional delegation of power from the Legislative to the Executive Branch,” which lacked the necessary checks and balances and, as such, was a violation of separation of powers.
“This Court must invoke its judicial review authority as a co-equal branch of government to now undo that improper delegation,” Judge Hunter asserted.
The court also voided any penalties that the state had imposed.
According to Detroit-based Wayne State University law professor Robert Sedler’s analysis of the ruling, “The court held that the statute on which the [health department] director relied did not contain meaningful standards to control the director’s discretion in issuing orders. Under the non-delegation principle — which is based on separation of powers — the legislature cannot delegate any of its powers to the executive branch.”
Far-left Democrat Whitmer may have been using the Department of Health as an end run around an October 2020 Michigan Supreme Court decision that a 1945 law she relied upon to issue shutdown orders directly from her office was unconstitutional.
In July 2021, the Republican-controlled legislature voted to repeal Whitmer’s COVID-related emergency powers.
On Instagram, the northern Michigan eatery, which is owned by Ian Murphy, declared that “Tyrants will tyrant. They HAVE to appeal. There’s absolutely no way they can’t let the #meanbbqman win.”
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Murphy’s attorney conceded that he expects an appeal because the Otsego County judge’s ruling was so broad in nature.
“The barbecue joint has been encouraging customers to show up for indoor dining and #riskitforthebrisket, selling stickers and T-shirts emblazoned with the hashtag and slogans such as ‘BBQ so good it’s illegal’ to champion its cause,” Detroit Eater reported in May 2021.
Whitmer is up for reelection in 2022. Her strongest GOP challenger at this point, according to polls, is former Detroit police chief James Craig.
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