Noah Feldman: William Barr is echoing Trump on stay-at-home orders

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Attorney General William Barr has issued a memo threatening to sue states if they infringe on people’s freedoms during the coronavirus pandemic — and encouraging U.S. attorneys to look for cases to bring against the states.

Not to put too fine a point on it, but what in the world does Bill Barr think he’s doing? As the memo itself acknowledges, restrictions on movement are necessary public health measures legitimately carried out by states.

It’s hard to know for sure, and the memo is so vague and equivocal that it reads almost like some sort of secret code.

One interpretation is that Barr is trying to harness the power of the Department of Justice to contribute to Donald Trump’s rhetorical, electioneering efforts to urge the rapid reopening of state economies.

Trump has been making life harder for governors by encouraging public protests against their stay-home orders. Barr’s memo now threatens those governors with legal enforcement measures. If and when the states reopen, Trump (and Barr) can then try to take credit for state governors’ decisions by claiming to have forced them into it.

Even before the memo was issued on April 27, Barr had sent up a trial balloon in comments made April 21 to conservative radio host Hugh Hewitt. The thrust of the conversation was to defend Trump against the idea that he’s been authoritarian or dictatorial during the pandemic crisis.

Barr made the (correct) point that Trump has not been relying on any claim of inherent executive authority, but rather emergency powers granted to him by Congress — and even invoking those sparingly.

But that was not all. Barr suggested that state governments might be obliged to lift restrictions they had put in place: “Our federal Constitutional rights don’t go away in an emergency,” he said.

And in a circumstance like this, they put on the government the burden to make sure that whatever burdens it’s putting on our constitutional liberties are strictly necessary to deal with the problem… And that’s the situation we’re in today. We’re moving into a period where we have to do a better job of targeting the measures we’re deploying to deal with this virus.

As a matter of doctrinal constitutional law, Barr is absolutely right. Severe restrictions on individual liberties need to be justified by a compelling government interest — like fighting a pandemic. They must also be targeted (“narrowly tailored,” in constitutional-law speak) to achieving that compelling goal.

But here is where things get a little weird: stay-at-home orders are narrowly tailored to avoiding the spread of the disease. Barr couldn’t plausibly claim otherwise.

The comment reads as more of a hint that states should hurry up and reopen, something the memo also implies. It says that existing restrictions “have been necessary in order to stop the spread of a deadly disease.” Note the past tense — “have been.” Barr is implying that restrictions may no longer be needed.

He went on raise the specter of legal action, directing U.S. attorneys to “be on the lookout for state and local directives that could be violating the constitutional rights and civil liberties of individual citizens.”

Without saying exactly what those unconstitutional directives were, Barr was sending a message to federal prosecutors around the country to bring lawsuits against state and local governments alleging that stay-in-place orders are unconstitutional.

It’s pretty striking that an administration that has taken almost no leadership role in guiding states to address the COVID-19 pandemic through shutdowns is now gesturing towards taking a leadership role in forcing them to reopen.

Why is the Department of Justice getting involved here? The answer partly lies in the emptiness of Trump’s past (incorrect) suggestion that he has the authority to reopen the economy. The president doesn’t have that constitutional authority, as Barr knows. But the Justice Department can sue states for stay-at-home rules that violate the Constitution; in fact, that’s just about the only thing the executive branch could lawfully do to push states to reopen.

To be sure, it seems pretty unlikely that such lawsuits would be successful in court. It’s hard to picture federal judges second-guessing public health experts advising governors to maintain stay-in-place orders.

So far, the only exception has come in connection with religious services. A federal district court ordered Kansas to allow socially distanced Easter activities after finding that the state had singled out churches for stricter restrictions than other gathering places. (Barr’s memo referred to religious services, but it wasn’t geared to litigation around that issue, which the Department of Justice had already addressed in a separate set of guidelines for states.)

The Barr memo is meant to ramp up the pressure on states to reopen, and fits with Trump’s apparent electoral strategy of pressing for faster reopenings. It’s part of the Justice Department’s job to look out for citizens’ civil rights and civil liberties. It would be a bad idea to turn that high responsibility into a political tool to help the president’s reelection campaign. Especially when lives are at stake.



Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”


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