In a broad-ranging phone-in interview with conservative radio host Hugh Hewitt on Tuesday, Attorney General William Barr described several important legal theories about how the federal government could make life very difficult for states which refuse to open after COVID-19 shutdowns.
Barr’s tone was mostly measured; he admitted several times that certain areas of the country should probably remain closed for business because they are hot spots for the novel coronavirus. But Barr went on to explain several legal rationales for federal interference with governors or local officials who fail to address civil liberties concerns or who frustrate the intent of what Barr called the “commonsensical” plan of President Donald Trump to reopen the country.
Barr’s argument started with the premise that coronavirus-related restrictions have gone too far.
“These are unprecedented burdens on civil liberties right now; the idea that you have to stay in your house is disturbingly close to house arrest,” Barr said. “I’m not saying it wasn’t justified; I’m not saying in some places it might be still justified — but it’s very onerous, as is shutting down your livelihood.”
Barr said shutdown orders were designed “for the limited purpose of slowing down the spread, that is, bending the curve” of COVID-19 infections to prevent the health care system from becoming overly stressed. “We didn’t adopt them as a comprehensive way of dealing with this disease. We now are seeing that these are ending the curve; now we have to come up with more targeted approaches.”
Things became more pointed, though, when Barr analogized continuing shutdown orders to a case of a doctor who “keep[s] feeding the patient chemotherapy” during cancer treatment. The cancer might be killed, but so would the patient, he rationalized.
This is another way of saying the cure is worse than the disease.
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Hewitt pressed the theory further:
“To use your analogy, Mr. Attorney General, sometimes with the best intentions, the doctors — and often with quacks and idiots — malpractice occurs. If such happens, to use your analogy, at the state level, would citizens be able to use the Fifth Amendment’s prohibition on condemnation without compensation or 42 U.S.C. § 1983 to bring actions against that government that were obviously indifferent” to civil rights concerns?
Barr backed away from answering in the hypothetical, but he did say this: “one of the reasons we have federalism is because the people provide a much greater check over their governors and their state officials than they do over the more remote federal government. The first line of defense for people is the political process in their state.”
Hewitt pushed again and suggested a § 1983 action — which alleges a deprivation of rights — is perhaps the “best answer” for “someone” (e.g., a governor) who “gets out of control.”
Barr then indicated that the Trump Administration would leverage the great conservative machinery at its disposal in this country to litigate states into submission with the Administration’s will. The key comment, for those listening, is 23 minutes and 46 seconds into the interview:
“Well, if people bring those lawsuits, we’ll take a look at it at that time, and if we think it’s — you know — justified, we would take a position. That’s what we’re doing now. We — you know — we’re looking carefully at a number of these rules that are being put into place, and if we think one goes too far, we initially try to jawbone the governors into rolling them back or adjusting them. And — if they’re not, and people bring lawsuits, we file a statement of interest and side with the plaintiffs.”
The use of the verb “jawbone” is important here. As a noun, obviously, the jawbone is the recipient of many a punch levied by many an assailant in movies and fiction. Its usage as a verb is not totally dissimilar. As a verb, to “jawbone” someone is defined sometimes as speaking “forcefully and persuasively” and other times as an “[a]ttempt to persuade or pressure by the force of one’s position of authority.” In other words, Barr has no problem throwing the weight of the Federal Department of Justice behind the Trump Administration’s wishes to pressure the states to reopen, and he has no problem doing it by joining citizen lawsuits against state governors. Barr went on:
“We’re really transitioning to starting a process of trying to get the nation back up and running — you know — I think that’s the best approach. As lawsuits develop; as specific cases emerge in the states; we’ll take a look at them.”
This tactic could result in substantial legal pressure against states and local governments. So far, the DOJ has filed a statement of interest in a Mississippi case where the City of Greenville in that state “fined congregants $500 per person for attending . . . parking lot [church] services – while permitting citizens to attend nearby drive-in restaurants.” Most common-sense people would agree that religious activities should not be burdened while commercial activities are not — a distinction Barr himself made in the radio interview. Yet it remains to be seen just how far the DOJ might go. For instance, during the radio interview, Barr trashed the legal notion of “essential” workers and businesses, saying shutting down entire categories of businesses through “very blunt instruments” (executive orders which go too far, in his opinion) must stop:
“And it’s not just religion . . . blunter instruments that say everyone has to shelter in place, to stay at home regardless of the situation on the ground . . . shut down a business regardless of the capacity of the business to operate safely for its customers and its employees, those are very blunt instruments . . . I think we have to adapt more to the circumstances . . . 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. The question really shouldn’t be you know, some governments saying well, is this essential or not essential. The question is can this business be operated safely?”
What Barr didn’t discuss is what Law&Crime pointed out yesterday: essential worker definitions emanate generally from a list issued by the Department of Homeland Security which in turn is rooted in the term “critical infrastructure” contained within the United States Code. The decision to draw such distinctions and classifications occurred legally less than two months after the 9/11 terrorist attacks, and many states cite directly to the Homeland Security list to define who is and is not essential. Barr may be signaling a legal fight over this language which has been part of federal law for nearly twenty years.
Additionally, Barr raised a unique complaint about states interfering with commerce, suggesting “tension” and “potentials for collision” between state and federal powers.
When a governor acts, obviously states have very broad police powers. When a governor acts, especially when a governor does something that intrudes upon or infringes on a fundamental right or a Constitutional right, they’re bounded by that.
[ . . . ]
They also can run into the federal role under the Commerce Clause, the so-called Dormant Commerce Clause. We do have a national economy which is the responsibility of the federal government. So it is possible that governors will take measures that impair interstate commerce. And just where that line is drawn, you know, remains to be seen.
When asked if he has “seen an example that would cause the Department of Justice to go into court and seek a declaration that any particular governor’s order or edict has violated the Dormant Commerce Clause,” Barr said “not yet.” He did not rule out a lawsuit which alleges a Commerce Clause violation by a state which remains closed against President Trump’s wishes. We may be on the cusp of an argument that one state’s decision to remain closed offends Article I, Section 8, Clause 3 of the Constitution.
Barr seems to be pretty confident that the administration’s tactics — generally speaking — will work.
Barr was asked elsewhere in the interview whether President Trump has ever indicated that he (Trump) “does not respect the Constitution or intend to abide by its separation of powers.”
“Never,” Barr said. “Never at all.”
Per Hugh Hewitt, the host: “Well, the rhetoric has been deeply deranged at times. We hear ‘dictator,’ ‘authoritarian’ being applied to the President. Is there anything he’s actually done that’s departed from well-worn furrows of presidential authority?”
“No,” Barr opined. “I said in my Federalist Society speech . . . when you actually look at his record, his actions have been, you know, well within the traditional rules of law and have been litigated patiently through the courts thus far. Usually, the courts have ended up siding with him.”
“It’s a good record thus far in terms of winning,” Hewitt replied.
[Image via Drew Angerer/Getty Images]
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