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 also chaos.
As The Hill reported on Monday evening, Barr has now directed federal prosecutors join in the hunt by having them example public health measures in each state, 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 hear 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 case of Typhoid Mary.
Court rulings have made it clear that “an emergency may not call into life a power” which never existed in the past. However, an emergency can make it permissible for both federal and state governments to engage in exertion of a power not normally used, or used only 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, even in the midst of emergencies. But those things — due process rights, voting rights, etc — are generally found on the list of things Barr spends his time trying to undercut.