There’s really not a lot that an attorney general should be doing in the midst of a pandemic except seeing to the rights of the downtrodden, who are getting trodden on harder than ever. Bill Barr isn’t going to do that. He’s certainly not going to see that people continue to have access to the ballot box. Barr still has his team out there pursuing Donald Trump’s conspiracy theories and seeking dirt on Joe Biden—because how much money Hunter Biden made as a consultant is clearly every American’s chief concern right now—but he’s also making his own very special addition to the White House’s handling of the COVID-19 pandemic.
Barr’s designated role is to be the “liberate” arm of Trump’s two-faced policy on social distancing. The attorney general has already dropped a stack of hints that governors who actually issued executive orders along the guidelines recommended by health policy experts are potential targets of lawsuits from the Department of Justice. And now Barr has ordered U.S. attorneys to spend their time picking over state regulations for opportunities to attack.
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It’s been a week since Barr threatened to sue governors who were being too effective in protecting their state with social distancing rules. After making a wildly inaccurate comparison between stay-at-home regulations and “putting innocent people under house arrest,” Barr made it clear at that time the DOJ was picking through lawsuits filed by the not-at-all grassroots protest groups for spots where he might weigh in on the side of risking people’s lives for the sake of profit. And chaos.
As The Hill reported on Monday evening, Barr has now directed federal prosecutors to join the hunt by having them examine public health measures in each state while looking for requirements that might be vulnerable to a legal assault. Barr’s letter instructing U.S. attorneys to stop whatever unimportant legal tasks were on their desks and look toward liberating COVID-19 included tips such as looking at orders that might violate First Amendment protection on religion and speech. By which Barr presumably means to go after states where governors have included churches in limits on gatherings—even though churches have been known hotspots that in other countries generated thousands of cases. And Barr is clearly on the lookout for any governor who dares to interfere with mask-free gun-wielding protesters blocking ambulances or threatening healthcare workers.
The two-page memo also includes instructions that the attorneys should be on the lookout for possible violations of “economic rights.” By which Barr obviously doesn’t mean looking into companies who are forcing employees to work in unsafe conditions, or companies using the fear generated by the pandemic to raise prices or simply initiate scams. Instead, Barr is aiming his team at states where governors tried to insist on safety in the workplace—something that Trump has been trying to eliminate long before anyone heard of COVID-19.
Barr warns the attorneys that “the Constitution is not suspended in times of crisis.” However, he resolutely ignores any admission that the Supreme Court has allowed restriction of rights in the case of a public health emergency since before the time of Typhoid Mary.
Court rulings have made it clear that “an emergency may not call into life a power” that never existed in the past. However, an emergency can make it permissible for both federal and state governments to engage in the exertion of a power not normally used, or used lightly. This clearly includes the ability to regulate commerce in almost any way imaginable. After all, Richard Nixon was able to freeze both prices and wages across the nation in the face of nothing more threatening than a relatively high rate of inflation.
There are absolutely rights the government cannot trample on, even in the midst of emergencies. But those rights—due process rights, voting rights, etc.—can be found on the list of things Barr spends his time trying to undercut.
