Can the Michigan Attorney General prosecute Ford for hosting the President, while the factory is under a DPA contract?

McCulloch v. Maryland, always and forever.

|The Volokh Conspiracy |

Today, President Trump visited the Ford factory in Ypsilanti, Michigan. Under state law, everyone in the factory was required to wear a mask. President Trump refused to wear a mask. The Michigan Attorney General said she would investigate Ford for letting the President visit the plant without a mask.

This Ford Factory is currently providing services under a Defense Production Act contract. Is the company a federal agent for purposes of the DPA? If so, are there any Supremacy Clause issues with prosecuting Ford for the President's behavior? Is this case like McCulloch v. Maryland, where the state of Maryland disciplined a federal bank employee?

We are living in a real-time final exam hypothetical.

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  1. Legal principles mean little in the world of political posturing, especially with colorable claims for and against both state and federal emergency powers.

    1. Perhaps. But one great thing about a legal blog is that people can ask questions (pure hypos or real-life examples) and solicit feedback and thoughts from the hoi polloi, as well as from legal experts (lawyers, law profs, judges).
      I think it’s a really interesting legal question. Regardless of whether or not–in real life–the question ends up being trumped [heh] by politics.

      1. It’s an interesting hypothetical legal question.

        The fact it’s actually somehow happening is…somewhat absurd.

        1. How deep does the need to “get” Trump go. Enough to sacrifice one of the few large employers left in a very rusty rust-belt state just because they had the temerity to host him for a few hours?

          1. It’s actually worse than that. Whitmer herself has given several press conferences indoors, where she isn’t wearing a mask. Upon facing criticism for her actions, she claimed “it wasn’t a public space such as a grocery store, and she left her mask off so viewers could see her speaking”.

            Whitmer clearly isn’t enforcing the law as it applies to her. But she is going to enforce it against Trump (or rather the company that allows Trump to visit)?

            Can there more clearly be an example of selectively enforcing a law for political bias?

          2. These people are insane, deranged cretins, and the lockdowns are killing people not saving them.

            1. You seem deranged and certainly a cretin. But I’d hesitate to call you insane. You’re nuts for supporting Trump after all of this. And you often make delusional posts. But truly “insane?” Nah; I think that would be a bit harsh.

              1. “after all this”

                After all what exactly? There are many areas where I disapprove of Trump, but supporting Trump or not doesn’t have anything to do with this.

                The Michigan AG is unhinged, and masks are totally useless. This is just petty tyranny. You should explain and support your generalized objection to my posts, but you won’t and can’t.

  2. As a member of hoi polloi (hoi is the definite article), I’ll say that Supremacy Clause is a canard, as he’s not a constitution, treaty, or law in furtherance — if he’s there in support of the Defense Act commandeering, federal sovereign immunity is in play, as it’s a core executive function, but that’s a shield against criminal and civil liability, and not a D & D power rating that allows you to enter buildings in hostile states. Can she legally impede? Of course. State police powers, and though the plant might be working at the direction of the Federales, that doesn’t make it federal property.

    Top of the head, likely wrong, don’t rely, Mr. President.

    Mr. D.

    1. Rereading the prompt, I see that you’re asking another question. Can she later prosecute Ford. Well, the statute cited in the enabling clause of the Exec order requires willful disobedience, which would be tricky given that it’s a third party. Is the plant as an instrumentality shielded by the fact that it’s been commandeered? Absolutely not. The health inspector can still check to see if the lunch meat in the cafeteria has gone bad.

      Mr. D.

    2. There is a cordial but vigorous debate on hoi polloi vs the hoi polloi.
      https://english.stackexchange.com/questions/366496/which-is-more-accepted-hoi-polloi-or-the-hoi-polloi

      (My personal favorite is the Los Angeles tourist attraction: The La Brea Tar Pits. It translates to ‘The The Tar Tar Pits.’)

  3. No, because the Governor’s authority to order face masks expired when the Legislature failed to authorize an ongoing state of emergency. The governor’s authority is limited to those powers she may reasonably exercise under the 1945 law (not requiring legislative approval), not those she exercises under the 1976 law (for which legislative approval was withheld).

    1. I think we have a winner.

    2. Good catch. That ruling apparently happened at 4PM today. And there’s no state of mind requirement for the misdemeanor in the 1945 Act. Strict liability for itinerant national executives, perhaps.

      http://www.legislature.mi.gov/(S(huhezl5ujy2mxvmwrxaknb41))/documents/mcl/pdf/mcl-Act-302-of-1945.pdf

      Mr. D.

    3. Interesting. If true (and it certainly looks plausible from here), I wonder what would be the best political strategy in response. Should the President counter-sue, invalidating the mask order for everyone and making obvious the lack of power of the Michigan governor and AG? Or should the President let the complaint ride and use it as a continuing example of his “they’re out to get me” theme?

  4. I can’t see prosecuting the company, in as much as they’d be incapable of compelling him to wear the mask. He’s not their employee.

    They could bar his entry, I suppose, (Realistically, this is what the state government, or rather Half Whitmer, is trying to achieve.) but can the state actually prohibit them from letting him in?

  5. The question is premised on Trump himself being immune from prosecution. Who is at fault for the Toddler in Chef’s misdeeds? Who (again) has to clean up his messes?

    1. Trump is the one cleaning up the Toddler in Chief’s misdeeds.

      That’s why he got elected.

      1. It’s always the black (or brown guy) with Republicans and conservatives.

        Must be the bigotry.

        1. I’m not sure I ever brought up Obama’s race.

          If it does matter, I was criticizing the white half. That’s not racist because I’m white now for not supporting Biden.

    2. The only misdeeds are on the part of the petty tyrants getting their jollies by seeing if they can force people to wear masks on their face even though it does nothing to help COVID, and may hurt.

  6. I hope those who are engaged in abuses of power and fascism think real hard about those choices.

  7. I suspect a state cannot prosecute a private party for failing to force a federal official to conform to state law in a situation where the state cannot prosecute the federal official directly.

    Just as I suspect the federal government cannot prosecute private parties for failing to force state officials to conform to federal law where they cannot prosecute the state officials directly.

  8. And I realize this is a legal question of immunity and conflict of law that’s independent of whether we agree with what Mr. Trump dis or not.

    I’m not sure it’s such an easy question. If a state can prosecute Mr. Trump for shooting someone on 5th Avenue, a question that came up in a recent Supreme Court oral argument, it’s not clear that they can’t also prosecute him for failing to wear a law.

    One would want a situation somewhere in between one where a president with 34 supporters in the senate can act with complete impunity, on the one hand, and one where every state controlled by opponents can prosecute the president on laws specifically designed to make the president’s job difficult.

    I fear that politics have reached such a state that both hypotheticals are conceivable. I’m not sure they would even have occurred to judges even a few years ago. We have lived during an era when politicians mostly cooperated with each other and avoided total war. enough to avoid destroying the country.

    1. That’s an interesting question but it’s not actually the one being asked above. The issue is not whether a state can prosecute Trump for shooting someone on 5th Avenue but whether, given those questions, the state can prosecute the owner of Mikimoto for failing to stop the shooting.

      The hypothetical is further complicated by the fact that while the illegality of murder is pretty clearly established, the enforceability of the mask rule is questionable. (See jubulent’s comment above.)

  9. I am not seeing why the President himself should be immune from prosecution under state law for this violation.

    This is not really different than drinking and driving. There is no good faith reason for the President to not wear a mask, just as there is no good faith reason for an FBI agent to drive home drunk from a party. What is driving Trump here is the false belief that he is above the law. But if an FBI agent decided to murder someone in cold blood, not in the plausible performance of any federal function, but in the mistaken belief that they were above the law and immune from state prosecution (maybe they have a relationship with the US Attorney that they think will protect them from federal prosecution), they would not be protected from state prosecution by the supremacy clause. A mistaken belief that you are above the law is not a defense for a federal official in violation of state law. Mere status as a federal official does not shield one from state law violations. There must be a good faith belief that one’s actions are justified pursuant to the execution of a federal function.

    All the people around Trump wear masks. There is no good faith reason Trump has for not complying with Michigan’s law. This is not a good faith violation of state law while trying to complete a federal function. This is a blatant bad faith violation of the law based on Trump’s belief that he is above the law and need not comply. Thus, the supremacy clause offers Trump no protection from state law prosecution, just as it would not offer such protection to an FBI agent who decides to murder someone in cold blood not because they were acting in good faith, but because they thought they could get away with it.

    As far as Ford goes, in contrast, I do not think they are a good target for prosecution. Because it is quite reasonable for them to believe that they would have no power to control Trump’s behavior here, because whether Trump’s behavior is immune under the supremacy clause goes to his intent. I think the individual that ought to be investigated here is Trump, not Ford.

    1. The other aspect of this is the criminal version of Section 1983 and Bill Barr’s thinly-veiled threat to prosecute state officials for violating it.

      Corporations are persons, and if she can prosecute Ford as a person then why can’t Barr prosecute *her* for violating Ford’s rights? Or at least threaten to — which may be the resolution to this. (Rumor has it that it was quiet threats from DC that got the churches reopened.)

      And we don’t know the backstory on this — Trump’s refusal to wear a mask may have been a “shot across the bow” — hoping that she would be stupid enough to try to prosecute him. One of these petty tyrants is going to go too far…

    2. I’m sorry, but a sitting President *is* above the law in that every AG since Watergate (both D&R) has held that a sitting President can not be indicted. Marc Levin went through this one night.

      It’s why the impeachment provisions exist — you gotta remove the President before you can indict him. And as to state laws — well, a Presidential motorcade can run red lights, can’t it?

      Look at it this way: Could the State of Michigan incarcerate a sitting President? Why not????

      Take a hypothetical — Trump pulls out a gun and murders one of the truly obnoxious reporters harassing him at a press conference held in, say, Michigan (so there is state jurisdiction). I think he would still have to be both impeached and convicted by the Senate before Michigan could touch him — I don’t think it would take long for this to happen, but I think it would still have to happen first.

      And a practical consideration: Do you honestly think that the USSS is going to let a state trooper arrest The President???

    3. Point 1: Is Governor Whitmer wearing a mask when indoors and under the camera?
      Point 2: Do you see any “problems” with the State of Michigan prosecuting the President for a law that the Governor is breaking without a problem?

      1. Oh, gee, a law being enforced on a partisan basis. I’m shocked, shocked..!

    4. The Constitution gives members of Congress quite limited immunity, it does so explicitly. I can’t take seriously the idea that it makes sense to think it gives Presidents much more extensive immunity by mere implication.

      I understand arguments that the Constitution should give Presidents some form of immunity. The potential mischief state officials could get up to bringing malicious charges against a President are obvious. But I simply can’t get around the fact that there’s no language in the Constitution actually doing this, and there is for Congress.

      1. The congressional immunity is there because of Charles I. It is to make sure the executive cannot bar them from appearing in congress.

        It makes no sense to immunize the president against the president’s actions.

        1. “The most interesting thing about King Charles the First is that he was five foot six inches tall at the start of his reign, but only four foot eight inches tall at the end of it”

    5. I think you misread the question. The question isn’t about prosecuting Trump for not wearing a mask (and what would such a prosecution entail – a $100 fine?). The question is about prosecuting FORD.

    6. “the supremacy clause offers Trump no protection from state law prosecution”

      A state cannot limit the president’s ability to perform his functions. Even in petty ways.

      Further, letting state and local prosecutors prosecute a sitting president exposes him or her to being dragged all over the country at a whim. It disrupts his ability to do his job.

  10. All Ford has to do is mention how much auto sales are down and how they aren’t sure that they will keep the Ypsilanti factory open after the DPA contract runs out. Give whatever notice is required to the UAW, etc.

    Maybe do what Elon Musk did to California and mention how much more business-friendly South Dakota is. That’s be the end of this….

  11. Michigan’s Attorney General?

    Dana Nessel, a Democrat

    Well, that explains that.

    1. yawn

  12. This is partisan pettiness.

  13. She got what she wanted, a headline and a CNN interview last night.

    She was never going to prosecute anyone. Political grandstanding. That’s ok, Trump was doing the same. But that was all this was.

  14. Reminder that masks are useless. Useless. There is no good evidence showing they are useful at all.

    Except maybe they are good as a placebo to make people “feel better.”

    https://www.youtube.com/watch?v=FRUYcMCtQT0

  15. It is interesting that the MI AG couldn’t enforce the edict yet expects Ford to enforce the edict. There is Ford’s defense in a nutshell. Not to mention that if the AG does file against Ford then I’m sure the US DOJ will have no problem involving themselves in the case on the side of Ford.

    1. I should have added that it shouldn’t be hard for Ford to remove this potential case to federal court either.

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