Attorney General William Barr, who has not hitherto distinguished himself as a civil libertarian, had some sensible things to say about constitutional rights during the COVID-19 pandemic in a radio interview yesterday. While Barr's responses to questions about President Donald Trump's extraconstitutional impulses were disingenuous at best, his comments about the need to respect civil liberties even in an emergency were encouraging.
"When you're faced with a potential catastrophe," Barr told conservative radio host Hugh Hewitt, "the government can deploy measures and even put temporary and reasonable restrictions on rights if really necessary to meet the danger. But it still has the obligation to adapt to the circumstances. Whatever powers the government has, whether it be the president or the state governor, still is bounded by constitutional rights of the individual. Our federal constitutional rights don't go away in an emergency. They constrain what the government can do. 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. They have to be targeted. They have to use less intrusive means if they are equally effective in dealing 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."
That position is well-grounded in Supreme Court precedent. Even in Jacobson v. Massachusetts, the 1905 decision that is frequently cited as validating broad state powers to deal with communicable diseases, the Court noted that those powers have limits. The Court rejected a challenge to mandatory smallpox vaccination, observing that "real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others." But it also acknowledged that judicial intervention could be appropriate in different circumstances.
"Smallpox being prevalent and increasing at Cambridge, the court would usurp the functions of another branch of government if it adjudged, as matter of law, that the mode adopted under the sanction of the state, to protect the people at large was arbitrary, and not justified by the necessities of the case," the justices said. "We say necessities of the case, because it might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons."
The one specific example of such abuses that Barr mentioned was local bans on drive-in church services in Kentucky and Mississippi, which imposed restrictions on religious activities that were not consistent with general social distancing rules. The Department of Justice supported the churches in those cases, saying such restrictions violate the First Amendment's guarantee of religious freedom. Earlier this month, a federal judge in Kentucky agreed, calling Louisville Mayor Greg Fischer's unilateral ban on drive-in Easter services "stunning," "unconstitutional," and "not even close" to satisfying the test for regulations that target religious activities.
Barr also spoke more broadly about balancing COVID-19 control measures against individual rights:
Obviously, states have very broad police powers. 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. And I think we have to do a better job of making sure that the measures that are being adopted are properly targeted…
When a crisis hits, I think the government needs a little bit of latitude to adopt the means to deal with it. But those can frequently be blunt instruments, and over time, I think the government has the burden of tailoring its measures to make sure they are not unduly intruding on civil liberties. And that's the question that's being presented today in our country, which is the extent to which government has to tailor its approach more to the circumstances on the ground and not do undue damage or broad deprivations of civil liberties.
Barr outlined what a more tailored and targeted approach might look like:
We have made a lot of progress in [flattening] the curve, and I think we now, as I say, have to fine-tune these things. I think we have to make a distinction…Orders that tell people, or principles that say, you have to keep your distance of six feet, you should be washing, you should be wearing PPE [personal protective equipment] when you're out and about—those are fine, because I think those arrest the transmission from person to person. But [orders] that say everyone has to shelter in place, to stay at home regardless of the situation on the ground, or…shut down a business regardless of the capacity of the business to operate safely for its customers and its employees—those are very blunt instruments…
I think we have to adapt more to the circumstances….We have to give businesses more freedom to operate in a way that's reasonably safe. They know their business. They have the capacity to figure out…how to conduct their business in a way that's safe. I think we have to give businesses that opportunity. The question really shouldn't be some governments saying, "Well, is this essential or not essential?" The question is, "Can this business be operated safely?"
Regarding the balance between state and federal powers in responding to the epidemic, Barr suggested that the Constitution could empower Congress to intervene if it decides that state policies "impair interstate commerce." But in general, he said, "our federal system" lets governors "execute what they think is best at the local level," as long as it is consistent with constitutional rights. "That can be a messy business," he added, but it is a "better approach than trying to dictate everything from Washington."
But isn't that exactly what Trump has repeatedly threatened to do? When he asserted that ordering businesses to close or allowing them to reopen "is the decision of the President," claimed he has "total" authority in that area, and insisted that "the president of the United States calls the shots" under "numerous" unnamed constitutional provisions, he was hardly showing respect for "our federal system." Yet when Hewitt asked Barr whether Trump had done "anything at all to give rise in you to a concern that he does not respect the Constitution or intend to abide by its separation of powers," Barr insisted that he had no such concerns: "Never. Never at all."
Hewitt then proceeded to ask Barr about "rhetoric" that "has been deeply deranged at times." He was referring not to Trump's delusional claims of autocratic powers but to the criticism of those claims. "We hear 'dictator,' 'authoritarian' being applied to the president," Hewitt said. "Is there anything he's actually done that's departed from well-worn furrows of presidential authority?"
Not surprisingly, Barr agreed that such criticism is unfair. "When you actually look at his record," he said, "his actions have been well within the traditional rules of law." That claim, even if it is limited to policies Trump has actually tried to implement, is debatable. But Barr, like Trump loyalists throughout the country, wants us to ignore the import of this particular president's words in a way that would have seemed strange under any prior administration. It is surely not a standard that Republicans would apply to any occupant of the White House from the opposing party.