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Threatening the Governors: Barr’s Commercial and Civil Liberties Brief

“[Y]ou can’t just keep on feeding the patient chemotherapy and say well, we’re killing the cancer, because we were getting to the point where we’re killing the patient.”

– William Barr, US Attorney General, April 21, 2020

The US Federal Attorney General should, nominally at least, be a stickler for the Constitution and its sacred word. When President Dwight Eisenhower’s Attorney General Herbert Brownell, Jr. was asked to participate in the suit that became Brown v the Board of Education, his position, while disruptive to pro-segregation states, showed fidelity to that document. The “separate but equal” doctrine should, it was suggested in legal argument, be overturned.

William Barr has proven to be something of an exception, threatening the federal system with interventions that say little about legality and everything about the jarring nature of partisan politics. There is an election to be won in November, and Barr has been showing Trump the most striking plumage of loyalty, encouraging the widest and most expansive readings of executive power.

As one of the members of the “open economy” faction in the administration, he has been waving a threatening sword against any US governors who defy the White House in efforts to ease quarantine measures. He was already giving some inkling of this in an interview with Laura Ingraham. By the end of April, he explained, “I think we have to allow people to adapt more than we have and not just tell people to go home and hide under the bed, but allow them to use other ways – social distancing and other means – to protect themselves.”

This has been aided, in no small measure, by various conservative and libertarian groups, one featuring former Reagan official and Attorney General, the ever lastingly corrupt Ed Meese. In a letter penned by Meese’s group to Barr, “rampant abuses of constitutional rights and civil liberties” were alleged, requiring the Attorney General “to undertake immediate review of all the orders that have been issued by the states and local governments across the nation.”

On April 21, in an interview with Hugh Hewitt, the topic of presidential powers came up for discussion. From Barr’s answers, two things can be discerned: a president who has operated “well within the traditional rules of law” – an incongruous assessment, to put it mildly – and a confusion shown by the press about “whether the president or a governor ought to do something in particular.”

Barr proceeds to show his own confusion in looking at those powers. First, he levels a shot at the governors themselves, suggesting that a few have been rough and ready to adopt various overbearing measures such as stay-at-home measures that have been poorly adapted. “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. And those situations are emerging around the country, to some extent.”

The Attorney General expressed a particular dislike for the entire concept of house isolation, though he did accept that “in some places it might still be justified.” But the very “idea that you have to stay in your house is disturbingly close to house arrest.”

Barr then highlights the economy, which he regards as the purview of the federal government through the Commerce clause, “the so-called Dormant Commerce Clause.” The governors, he envisaged, could stray by taking “measures that impair interstate commerce.” A good number were already of interest to Barr. “We’re looking carefully at a number of these rules that are being put in place. And if we think one goes too far, we initially try to jawbone the governors into rolling them back or adjusting them.” Not succeeding on that front, Barr promises vigorous legal counters where “people bring lawsuits”, with the administration siding with the plaintiffs in pitched battles to overturn onerous regulations. “As lawsuits develop, as specific cases emerge in the states, we’ll take a look at them.” Pity the public health argument.

The Justice Department has already been true to this, throwing its weight behind a Mississippi Church’s action against the City of Greenville over shut-down orders on alleged impingements of religious freedom. Admittedly, the April 7 measures were scatty and inconsistent, the product of a muddled bureaucratic mind. Of particular concern to the Temple Baptist Church were fines of $500 levelled on anyone attending parking lot services connected with the church, yet permitting citizens to attend drive-in restaurants with abandon even, as Barr put it, “with their windows open.” Greenville thereby appeared to have “singled churches out as the only essential service (as designated by the state of Mississippi) that may not operate despite following all CDC and state recommendations regarding social distancing.”

The action by Barr and the Church were sufficient to convince the Greenville council to relent on the issue of fines and revise the order. The new policy eliminates the distinction between drive-up church services and other forms of drive-up interactions. Worshippers will simply have to keep their windows wound up – well, at least most of the time.

The White House and Justice Department can only hope to direct their ire against the governors in such indirect actions. Other pressures – monetary, for instance – may also be directed against transgressors keen to retain the stay-home regime. All the while, the core problem – that of having sufficient testing kits and adequate equipment – will be skirted. The pandemic will continue to rage.

Certain governors have already decided in a fevered rush to unleash their state’s economic urges, easing Barr’s concerns while unnerving other officials. Despite having over 20,000 confirmed COVID-19 cases, Georgia’s Brian Kemp gave the order last week permitting nail salons, massage therapists, tattoo parlours, bowling alleys, gyms and various other businesses to reopen on Friday. This week, movie theatres and restaurants can follow suit. The advice given to Kemp by Georgia’s Public Health Commissioner Kathleen Toomey was not exactly rosy, but teasingly optimistic. “We definitely have a plateauing and what appears to be a decline.” This did not convince Marc Lipsitch of Harvard’s T.H. Chan School of Public Health. “If you open up enough, it’s almost certain the virus will hit Georgia again.”

The view from the mayoral side was despairing, suggesting a state deeply divided between the narrative of rights stubbornly asserted, and that of public health, poorly considered. Albany Mayor Bo Dorough was aghast. “I’m flabbergasted that the governor would say we can’t take additional precautions to protect our citizens. This isn’t a mixed signal. It’s a U-turn.” For all that, the United States remains, at its core, a business civilisation; and at the helm of USA Inc. is a businessman fronted by a loyal Attorney General keen to impress. The economy-commercial faction in the administration is on the move and the public health advocates risk being mauled.

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Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

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