Attorney General William Barr has chosen to further his patron’s desire to “reopen” the economy quickly by warning state and local authorities not to go too far with their coronavirus-related restrictions.
On April 27, Barr instructed DOJ prosecutors to be on the lookout for any state or local ordinance that “crosses the line from an appropriate exercise of authority to stop the spread of COVID-19 into an overbearing infringement of constitutional and statutory protections” because in such cases “the Department of Justice may have an obligation to address that overreach in federal court.”
The legitimacy of Barr’s challenges to state governments will be determined by how Barr’s DOJ defines “too far,” and where it attempts to draw the line between the “appropriate exercise of authority,” on the one hand, and an “overbearing infringement of constitutional and statutory protections,” on the other.
Narrow, precisely targeted challenges to obviously abusive state restrictions of constitutional rights that have no relation to slowing the spread of the coronavirus would be a proper exercise of federal authority.
But simply substituting Barr’s judgment for that of state governors and local authorities on precisely how far it is wise to go to protect health and safety within a given state or community would be an abuse of power on the part of the attorney general. It would be, on its face, using the government’s law enforcement power to support the political agenda of an incumbent president seeking reelection.
Distinguishing between a legitimate exercise of federal authority and an abuse of power begins with a look at the constitutional framework. There’s ample authority to guide the analysis.
While there is no “pandemic exception” to the fundamental liberties the Constitution safeguards, the Supreme Court made it clear over a hundred years ago in Jacobson v. Massachusetts that the Constitution does not prohibit government from taking necessary, temporary measures to safeguard the health and safety of the community in an emergency:
[I]n every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.
Determining the limits on the government’s authority to restrict liberty in times of emergency requires a balancing test, but the scales are heavily weighted in favor of deference to the emergency measures. Under Jacobson, courts are not permitted to second-guess the wisdom or efficacy of a government’s emergency actions. They should intervene only when the action “has no real or substantial relation to [protecting public health or safety] or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” [emphasis added]
That’s a high bar for any court challenge to clear. And the bar is particularly high when it comes to protecting the health and safety of the public against communicable diseases. As the Supreme Court stated in Jacobson:
The right to practice religion freely does not include the liberty to expose the community . . . to communicable disease.
So, how does Barr’s shot across the bow of state and local governments stack up against this constitutional framework?
So far, the signals from Barr are murky, but troubling.
Barr’s message has been delivered in three bites:
(1) A Statement of Interest filed by the DOJ in a Mississippi case in which a church claimed that local authorities took improper action to stop it from holding drive-in services;
(2) The memo Barr sent to DOJ prosecutors instructing them to be on the lookout for restrictive measures that go too far; and
(3) A lengthy interview Barr gave to conservative talk-radio host Hugh Hewitt.
Let’s look at these one by one.
The Statement of Interest filed by the DOJ in support of the plaintiff in a Mississippi lawsuit—the only official action Barr has taken to date—appears on its face to have been a legitimate challenge to an arguably discriminatory local restriction on religious assembly.
The plaintiff in that case was a Baptist church that had been prohibited from holding drive-in services, even though the church required parishioners to remain in their cars at all times with their windows closed. Mississippi’s statewide order allowed all essential businesses to continue operations, and designated churches as essential. But the city Greenville banned drive-in church services anyway, even though they adhered to the guidelines established by the CDC and the state. At the same time, the city permitted drive-in restaurants to serve customers with their windows open. As a result, the city ordinance arguably singled out religious assembly for less favorable treatment than equivalent secular pursuits.
The church’s challenge, supported by the DOJ, quickly led to a voluntary revision of the ordinance, and in the end no harm was done to either the Constitution or the state’s efforts to slow the spread of the virus.
While the DOJ’s opposition to the Greenville ordinance, standing alone, may have been a defensible use of federal authority, it does raise the question of whether that authority will be exercised selectively, only when it furthers Barr’s (or Trump’s) political agenda.
Religious liberty is not the only right protected by the Constitution. A number of states have used coronavirus restrictions to curtail abortion access, arguing that it is non-essential. Is Barr going to challenge these ordinances, too? Is he going to challenge state ordinances that set up hurdles to absentee voting?
Or will Barr focus only on the constitutional rights that are most prized by Trump’s base?
Then there’s Barr’s memo to DOJ prosecutors, which suggests without being explicit that the targets of this campaign may well be selected through a political filter.
While it concedes that disfavored state restrictions “are not limited” to religious matters, it clearly puts discrimination against “religious institutions and religious believers” front and center. Where else does Barr target his army of prosecutors? The memo mentions only discrimination against “disfavored speech” and “undue interference with the national economy.”
“Disfavored speech” could be anything—maybe a right to “Liberation” protests or even a warning against any state restriction that might prohibit Trump from holding a campaign rally. “Undue interference with the national economy” is similarly both expansive and vague. For starters, how are the lawyers at the Department of Justice supposed to reasonably calculate the national economic consequences of state and local ordinance? The answer, of course, is that they cannot. The only purpose of such a threat is to intimidate lawmakers into not adopting measures that might frustrate or delay Trump’s “open America again” policy.
But the most revealing window into Barr’s intentions is his interview with Hugh Hewitt.
In speaking to Hewitt, Barr articulated a narrow, biased, and highly inaccurate view of the purpose, scope, and efficacy of state stay-at-home and shelter-in-place orders.
According to Barr, the orders were adopted only “for the limited purpose of slowing down the spread, that is bending the curve. We didn’t adopt them as the comprehensive way of dealing with this disease.”
Who says? Weren’t the measures adopted to more broadly stop the virus from killing people? What state declared that the minute the curve flattened, their orders would automatically be rescinded, no matter how many people were still dying?
Barr then declares that that war has been won, and therefore new therapies are needed: “[N]ow is the time that we have to start looking ahead and adjusting to more targeted therapies.”
When and where did Barr get his medical degree? Who made him chief health officer of the United States? Who put him in charge of deciding which therapies are medically indicated, and which go “too far?”
The answer, of course, is precisely: No one. This is far afield of his Constitutional authority.
But it gets worse.
Barr doesn’t merely want to substitute his own views for those of health professionals, he wants to leave it to business executives. Here’s more from his Hewitt interview:
You know, I also think that we have to give businesses more freedom to operate in a way that’s reasonably safe. They know their business. They have the capacity to figure out, as the Marines say, “improvise, adapt, and overcome,” how to conduct their business in a way that’s safe. I think we have to give businesses that opportunity.
These statements of bias from the attorney general would be bad enough because they represent a political, not a legal, opinion. But he wasn’t finished. Barr continues:
I think the president’s guidance has been, as I say, superb and very common sensical, and I think a lot of the governors are following that.
This attorney general has shown, time after time, that he is not a faithful and impartial executor of the laws, but merely the cat’s paw of the president.
And now, in the midst of a pandemic, he is showing it again.