Barr: ‘The Constitution Is Not Suspended in Times of Crisis’ - Should the DOJ Watch Out for State & Local Orders That Infringe on Citizens’ Rights?

What’s the story?

• Attorney General William Barr directed federal prosecutors to “be on the lookout for state and local directives that could be violating the constitutional rights and civil liberties of individual citizens” in a memo titled “Balancing Public Safety with the Preservation of Civil Rights” that was distributed Monday.
• The directive comes as stay-at-home orders enacted by state and local governments amid the coronavirus (COVID-19) pandemic have in some cases drawn criticism as being excessive intrusions on citizens’ rights. Barr explained the intent of his directive:

“Many policies that would be unthinkable in regular times have become commonplace in recent weeks, and we do not want to unduly interfere with the important efforts of state and local officials to protect the public. But the Constitution is not suspended in times of crisis. We must therefore be vigilant to ensure its protections are preserved, at the same time that the public is protected.”

Stay-at-Home Orders Spark Controversy

• Across the country there has been widespread compliance with stay-at-home orders during the public health crisis, but in a number of cases the orders have been accused of infringing on citizens’ rights.
• During Holy Week, cities including Louisville, Kentucky and Greenville, Mississippi attempted to ban socially-distanced drive-in religious services (although federal courts blocked both efforts); while the governor of Kentucky ordered state police to record the license plates of those who went to services.
• In Illinois, an effort by Gov. J.B. Pritzker (D) to extend a stay-at-home order drew a legal challenge and was temporarily blocked due to what Pritzker called “a cheap political stunt”. The presiding judge said the order was so broad that “you could drive a Mack truck through this thing” and its structure violated “numerous sections” of both the U.S. and Illinois constitutions to the point that “the Bill of Rights is being shredded.” 
• On Lake Michigan’s opposite shore, Michigan Gov. Gretchen Whitmer (D) is facing a push for a recall election by critics who believe her stay-at-home order is arbitrary and excessive. Whitmer’s initial order prohibited the use of motor boats & jet skis while allowing sailboats & kayaks; banned Michigan residents from travelling to vacation homes while allowing such travel by out-of-state residents; and required the closure of areas in large stores “dedicated to carpeting, flooring, furniture, garden centers, plant nurseries, or paint”. The governor later eased portions of the order to allow access to garden centers & home improvement areas in big-box-retailers, the use of motor boats, and Michiganders to travel between residences (although it is still discouraged).
• Several state and local governments have attempted to force gun stores to close amid the pandemic, prompting the Trump administration to designate them as essential businesses.
• New Jersey Gov. Phil Murphy (D) said, "I wasn't thinking of the Bill of Rights when we did this" in response to a question about restrictions on religious services and other gatherings in his stay-at-home order during an interview with Fox News' Tucker Carlson.

Constitutional Protections Under Threat?

• For any level of the government to impose a valid limit on an individual’s constitutional rights, it has to meet the most stringent standard of judicial review ― known as strict scrutiny ― by showing that the restriction both serves a compelling interest and is narrowly tailored to advance that interest.
• While the powers not delegated to the federal government by the U.S. Constitution are reserved to the states and to the people under the Tenth Amendment, that doesn't absolve states of the need to satisfy "strict scrutiny" in curtailing constitutional rights.
• Here’s a look at several constitutional provisions that state & local governments could run afoul of in their implementation of stay-at-home orders:
• Free Exercise of Religion: The first clause of the First Amendment to the Constitution is known as the Free Exercise Clause, and prohibits the government from establishing a religion or “prohibiting the free exercise thereof”.
• Freedom of Assembly: The third clause of the First Amendment to the Constitution guarantees “the right of the people to peaceably assemble, and to petition the government for a redress of grievances.”
• Right to Bear Arms: The Second Amendment of the Constitution guarantees that “the right of the people to keep and bear arms, shall not be infringed.”
• Interstate Commerce: Under Article I, Section 8, Clause 3 of the Constitution, Congress and the federal government have the power to regulate interstate commerce.

— Eric Revell

(Photo Credit: iStock.com / mphillips007)