On Saturday, writing for the conservative website The Bulwark, attorney Philip Rotner broke down the flawed argument by Attorney General William Barr that he has a constitutional basis for challenging state and local stay-at-home orders.
"Distinguishing between a legitimate exercise of federal authority and an abuse of power begins with a look at the constitutional framework," wrote Rotner. "While there is no 'pandemic exception' to the fundamental liberties the Constitution safeguards, the Supreme Court made it clear over a hundred years ago in Jacobson v. Massachusetts that the Constitution does not prohibit government from taking necessary, temporary measures to safeguard the health and safety of the community in an emergency."
"Determining the limits on the government’s authority to restrict liberty in times of emergency requires a balancing test, but the scales are heavily weighted in favor of deference to the emergency measures," wrote Rotner. "Under Jacobson, courts are not permitted to second-guess the wisdom or efficacy of a government’s emergency actions. They should intervene only when the action 'has no real or substantial relation to [protecting public health or safety] or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.'"
Thus far, Rotner wrote, Barr has only offered glimpses of his legal strategy, but those glimpses are "troubling."
First was his DOJ's statement of interest in a lawsuit against a Mississippi town that banned drive-in prayer services. "While the DOJ’s opposition to the Greenville ordinance, standing alone, may have been a defensible use of federal authority, it does raise the question of whether that authority will be exercised selectively, only when it furthers Barr’s (or Trump’s) political agenda," wrote Rotner.
Second was his "expansive and vague" memorandum to federal prosecutors on the kinds of cases he will target, including cases concerning freedom of speech and religion, and "interference" with the economy. This "suggests without being explicit that the targets of this campaign may well be selected through a political filter ... The only purpose of such a threat is to intimidate lawmakers into not adopting measures that might frustrate or delay Trump’s 'open America again' policy."
"But the most revealing window into Barr’s intentions is his interview with Hugh Hewitt," wrote Rotner. "According to Barr, the orders were adopted only 'for the limited purpose of slowing down the spread, that is bending the curve. We didn’t adopt them as the comprehensive way of dealing with this disease.' Who says? Weren’t the measures adopted to more broadly stop the virus from killing people? What state declared that the minute the curve flattened, their orders would automatically be rescinded, no matter how many people were still dying?"
"This attorney general has shown, time after time, that he is not a faithful and impartial executor of the laws, but merely the cat’s paw of the president," concluded Rotner. "And now, in the midst of a pandemic, he is showing it again."
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