Mich. Governor’s Migrant Worker COVID-19 Testing Order Passes Constitutional Muster

On Wednesday, the 6th Circuit ruled that Michigan Governor Gretchen Whitmer did not violate the 5th Amendment’s Equal Protection Clause after passing an executive order (EO) requiring employers of migrant farmworkers to provide free coronavirus testing during the COVID-19 pandemic. The holding comes as a result of a request for a preliminary injunction to prevent the law from being enforced by a group of farm-owners, who alleged that the state designed the EO to unconstitutionally target Latino farm-workers.

The EO required the plaintiffs to test, at employer expense, all migrant farmworkers within 48 hours upon arrival and subsequently 10-14 days later. If a farm employee fails to test, then the worker is not allowed to begin employment. The owners proffered that the EO specifically required “meat, poultry, and egg sectors” to meet the testing mandates, while also excluding “bakeries, flour mills…and general food processors,” in order to focus on the “segments known to the State to be supported by Latino workers.” This focus, concluded the plaintiffs, operated as a law that created a racial classification in violation of the Constitution.

The appellate panel disagreed, holding that while the Equal Protection Clause prohibited laws that create a racial classification unless said law is “narrowly tailored to further compelling governmental interests,” proving such a law was unconstitutional required more than evidence that said law created a disparate impact among racial groups. Evidence must also show that the law was motivated by “an improper racially motivated purpose” or that “the decisionmaker…selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” As the plaintiffs only provided data that the defendant’s order, if enforced, would result in more Latinos being tested than any other racial group, the plaintiffs failed to meet their burden of proof for proving a violation of the Equal Protection Clause.

The court concluded by saying that “because the plaintiffs did not establish that the order had a discriminatory purpose….the (EO was) subject to rational basis review, under which the government’s action is presumed constitutional and (the) plaintiffs must negate every conceivable basis which might support it” in order to prove the necessary irreparable harm required to receive a preliminary injunction enjoining an EO from becoming enforceable. Given the defendant’s rational desire to protect migrant workers, their families, their communities, and the food supply chain, and the aforementioned lack of evidence of the EO’s discriminatory purpose, the court ultimately held that the plaintiffs failed to prove the necessary “irreparable harm” necessary to qualify for their requested preliminary injunction.

The plaintiffs, including True Blue Berry Management and Smeltzer Orchards, are represented by Varnum Riddering Schmidt & Howlett.