Attorney General William Barr has warned state and local authorities not to go “too far” with their coronavirus-related restrictions.
Barr has instructed DOJ prosecutors to be on the lookout for any state or local ordinance that crosses the line that divides an appropriate exercise of emergency authority from an infringement of individual rights.
But what, exactly, is “too far?” And where is the line between legitimate state action and excessive intrusion on individual rights?
Narrow, precisely targeted challenges to obviously abusive state restrictions that have no relation to slowing the spread of the coronavirus would be a proper exercise of federal authority.
But substituting Barr’s judgment for that of state and local health officials on how to protect the population from a killer virus is a potentially deadly abuse of power.
While there is no “pandemic exception” to constitutionally protected liberties, the Supreme Court made it clear over a hundred years ago in Jacobson v. Massachusetts that the Constitution does not prohibit government from taking emergency measures to safeguard the health and safety of the public:
“in 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 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.”
That’s an incredibly high bar for any court challenge to clear, particularly when it comes to fighting 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 was delivered in three bites: (1) a “Statement of Interest” filed by the DOJ in a Mississippi lawsuit; (2) the memo Barr sent to DOJ prosecutors instructing them to be on the lookout for orders that go too far; and (3) an interview with Hugh Hewitt.
The Statement of Interest filed by the DOJ in the 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 with their windows closed. Mississippi’s statewide order permitted churches to continue to hold services, but the city of Greenville banned them. 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 unfavorable treatment.
After the DOJ filed its Statement, the city voluntarily revised 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 red states have used coronavirus restrictions as a pretext to eliminate a woman’s constitutional right to an abortion. Is Barr going to go after them? Is he going to challenge states that use the coronavirus as cover for voter suppression? Or will he focus only on vindicating the constitutional rights that are most prized by Trump’s base, like religious freedom, gun ownership, and the right to spew hate speech at political rallies?
Barr’s memo to DOJ prosecutors suggests that his targets 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.” This sounds like code for targeting orders that might inhibit Trump’s campaign rallies or frustrate his “re-open America” policy.
But the most revealing window into Barr’s intentions is his interview with Hugh Hewitt.
In that interview, Barr articulated an artificially narrow and highly inaccurate view of the purpose and scope of state stay-at-home 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 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?”
And Barr doesn’t merely want to substitute his own views for those of health professionals, he wants to leave the decisions to business executives:
“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.”
Barr’s statements would be bad enough without adding fawning praise of the Dear Leader. But he couldn’t resist: “I think the President’s guidance has been, as I say, superb and very common sensical.”
While the devil will be in the detail of Barr’s execution of this program, all signs indicate that the devil is already at play.