Coronavirus

The Attorney General Defends Civil Liberties Against Overreaching COVID-19 Control Measures

While denying Donald Trump's dictatorial impulses, William Barr notes that public health emergencies do not give governments unlimited powers.

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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.

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  1. >It’s not what he did, it’s how he said it.

    1. The incompetence of Trump and his minions is so overwhelmingly apparent to all by now we shouldn’t be surprised.

      They don’t know how to competently build a fascist state even when its handed to them on a platter.

      Really it should be simple, declare mandatory quarantines for those who have been exposed to covid-19, and then quarantine in secure quarters every prominent democrat and opposition media figure for the standard 18 month quarantine period. Except Joe Biden of course, he gets his own 24 hour realty show/news channel.

    2. more lies and liberal garbage from this scummy fake news rag. “While denying Donald Trump’s dictatorial impulses…”
      Let’s see Trump isn’t the one who pushed to lock down the nation which has not reduced the infection rates by one person.

      Trump didn’t tell people they couldn’t buy seeds to garden. zero risk
      Trump didn’t tell people they couldn’t fish in a boat by themselves. zero risk.
      Trump didn’t tell people they couldn’t buy carseats, Couldn’t go to church and sit in their cars. All zero risk.
      Trump didn’t pay activists to dress like nurses in colorado and stand in traffic. Those clearly weren’t nurses or one of them needs an instruction manual on how to properly don an n-45 mask. That’s the problem when you push a false narrative. There are real nurses that know there is no way these people are nurses. So none of that was done or encourage by Trump. so Jacob Sullem is another dishonest fake journalist pushing a liberal agenda and a piece of shit.

  2. “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.”

    “See, I’m exercising my freedom of speech right now!”

  3. JFree, Hihn hardest hit!

  4. “The U.S. Constitution and Supreme Court precedent say otherwise. For starters, quarantines and other public health directives fall under “police power,” which is distinctly designated to the states. The Supreme Court confirmed in 1824 that quarantine laws fall under state purview.”

    Yes, but the Feds have the power, under the contitution, to limit those powers.
    A governor simply cannot declare an unlimited quarantine, infringing A1 protections at least, as Newsom has done.

    1. ” . . . fall under “police power,” which is distinctly designated to the states . . . ”

      Has anybody told the F.B.I. this?

      1. Diseases cross state lines.

        1. For money?

          1. And for immoral purposes!

      2. Seeing as how they’re part of the DOJ, surely Barr has sent them a memo.

      3. The FBI is an investigative body not a police force. How else do you propose to enforce federal law?

  5. Maybe, but probably not, President Trump overstated his authority to reopen the economy, hoping he would be shouted down by governors. If he is not responsible for reopening the economy, then how can he be held to task for shutting it down?
    In this age of opposing anything Trump says or does, he will certainly be held responsible for everything bad that happens, no matter what.
    This would just make it a little harder to blame him for the one thing.

    1. //If he is not responsible for reopening the economy, then how can he be held to task for shutting it down?//

      Because the people heckling Trump do not actually care what he does, or does not do. They care about heckling Trump. One day they’ll denounce Trump as an unconstrained dictator and the following day they’ll praise their state governors for issuing a broad variety of executive orders effectively eliminating their right to do much of anything other than sit on the couch and watch television.

      They’ll heckle Trump for destroying the economy at the same time as they’ll heckle him for “fomenting rebellion,” – that is, for suggesting that some of the lockdowns and they way they are being enforced can rightly be characterized as excessive. They’ll heckle him for not destroying the economy enough, and blowing it all off as a “hoax.”

      They’ll heckle Trump for taking it too seriously and, at the same time, not seriously enough.

      They don’t actually care what Trump does or does not do. They just care about heckling him and are hoping the doublethink leads to an electoral advantage in November.

      1. I agree. This is definition of a bloodless coup and no more

      2. Regarding the heckling, a good example of it was when Trump first started talking about reducing restrictions to keep the economy from tanking. There was a massive outcry about how he’s willing to kill people for money. And then when he started talking about quarantining the NY metro area, Cuomo’s response (aside from pointing out that he didn’t think that it would be legal) was to talk about how doing so would be extremely disruptive to the economy. And of course we all remember what an outcry *that* caused, or more accurately, *didn’t* cause.

  6. https://www.facebook.com/HPOUTX/

    HPOU’s response to Judge Hidalgo’s draconian mask order:

    “Now we want to be very clear, the Houston Police Officers’ Union believes everyone should be wearing a mask in public, in order to protect themselves from the virus and we are encouraging all of our officers to wear a mask. However, we draw the line at the draconian measures Hidalgo has decided to engage in.”

    See full statement below.

    1. Thus began the great mask war.

    2. What’s the deal in TX where county judges issue these tyrannical orders? Do they have executive powers? Bad enough when it’s governors or mayors but judges?

      1. Texas County Government

        Apparently, in Texas the county commission is considered a sort of court and the county executive carries the title of Judge.

      2. Texas government at the county level is still heavily controlled by Masons.

    3. Well at least it’s coming from a reputable source. I understand that this is the only police force that actually all went to medical school. And did they make a plan for who is going to teach them how to properly wear a mask because actually wearing a mask only protects you from airborne, active coughing or spitting, little evidence there is a lot of airborne infection from this. so instead it creates a surface to collect a concentrated sample of the virus so when the people wearing them without training can remove them improperly and put there hands and fingers into possible a super concentrated collection of the virus exists to then infect themselves. or maybe we should look at actual proven science that shows that an uninfected person quarantined (locked down) with someone that’s infected has a 26% higher chance of acquiring the infection by being isolated with that person than in intermittent contact such as if they were coming and going. That’s actually established science as well as common sense. So tell me again how all these draconian measure that have NEVER been done in the history of the planet. Wasn’t done in the 50’s for the asian flu that we knew was coming for 3 months and killed as of now 3 times more people. But now the world will come to an end if we don’t do it. Yeah, I’m thinking this is all political because it is ALL political. None of this crisis response happened with any previous pandemic. Not one. This happened because Trump was in office and liberals saw a chance to destroy his greatest accomplishment and that’s exactly what they did. So lets all go put some masks on and act like we are doing something important.

  7. “But isn’t that exactly what Trump has repeatedly threatened to do? ”

    “Threatened”, yes.
    Is there any proof he has started carrying any of those threats out ?
    Trump’s claim as to what powers he thinks he has is not exactly a threat.

    Until then, I advise Reason not to compare political claims of power with actual actions !

    1. They can’t help it. Ornj Mun baaaaaad.

      1. Ornj Mag baaaaaad

    2. Precisely! And thus we shall also never condemn AOC and her squad, as they have done nothing yet.

      1. Gag. AOC and the ‘squad’ make Trump look like Jesus.
        AOC belongs in one place; on her hands and knees, maybe with an apple in her mouth.

      2. You can judge Trump and the Squad by what legal documents they have proposed, and have been unable to implement.

        It is difficult to judge what Trump says off the cuff because of his annoying habit of speaking in hyperboles. AOC’s speech is difficult gauge because she is a genuinely an ignorant moron.

        1. actually you can’t but thanks for the input. A great deal of what Trump says is to push a reaction from the other side. Since ultimately his goal is push the left into responding to something he says you can’t attribute what he says to why he is saying it. Your explanation is simply the words of a concrete thinker. Life is a little more complicated. You are commenting on the moves of a checkers game not realizing that we are playing chess. Actions speak louder than words. that’s a saying because you really can only make an accurate judgment about something based on what they do. Not what they say. that’s what defines a person. Sorry but you are way off base. What your proposing is style is more important than substance.

      3. Just because they haven’t been successful at getting that horrible Green Deal passed doesn’t mean they deserve the benefit of the doubt

      4. They have introduced legislation. Trump hasnt even ordered a memo written. But you keep on calling oranges apples.

        1. Or blueberries . . .

      5. another moron. She hasn’t made antisemitic comments? I believe she has? She hasn’t made false allegations against people? I believe she has? They didn’t vote for impeachment knowing full well that it was a hoax, they did. They didn’t say they saw evidence of Russia collusion because they did, and they lied and there is a record of it. I could give another hundred examples. Your comments here like most of your comments show that your not too intelligent. I would suggest you stick to pop up books. They are more suited for your intellectual limitations.

        You are simply another hateful uninformed idiot pushing your own agenda.

    3. The reality is that Trump is a pretty ordinary president. Nothing he has actually done can be described as outside the traditional rules of law. That doesn’t make him a libertarian but he’s far from the dictator some Reason writers imagine. Even the Bump Stock example is well within accepted practices of former presidents. Remember the Dreamers? How about everything FDR did as president? As far as Covid federalism goes he’s made it absolutely clear that the governor’s will decide how their states manage it. Barr, properly in my view, says the DOJ will join lawsuits if he believes the plaintiffs constitutional rights have been violated. This is hardly unprecedented. It’s been going on for decades in civil rights cases.

  8. Governments have unlimited power because they can literally do anything they want. Who will stop them? Courts? They’re on the same team. The people? Unless they get organized, government violence will always triumph.

    Allow me to adjust my tinfoil hat here, but I think this was just a test run at our rulers exercising absolute power.

    And nothing else happened.

    1. One of the primary faults in the Constitution is letting the government define its own limits, leaving The People only with one vote every four years to choose among two wannabe despots.

      There needs to be some way for individuals to sue to overturn laws.

      1. There needs to be some way for individuals to sue to overturn laws.

        Sue whom and with whom do they file the suit? As sarcasmic points out, they’re on the same side.

        The laws need to overturn themselves regularly as a matter of course. The people should move to have laws preserved.

      2. And this is why they should never have stopped teaching civics.

        1. That is precisely why they DID stop teaching civics.

          1. Good point. Good god, the level of ignorance is astounding.

            1. it really hurts, the number of people I see who don’t recognize basic things. I don’t consider myself a legal eagle by any standard, but even I understand the concepts of precedent and checks&balances.

    2. you are absolutely correct because there is no science or precedent to support the ridiculous response we are taking to this situation. When you factor in you can’t live stream church services, you can’t sit in a church parking lot with your windows rolled up, you can’t surf, you can’t fish by yourself on a lake in a boat, you can’t garden. None of those things put anyone at risk. Period. They were done for exactly the reasons you gave. The entire thing was done for that reason. Never let a crisis go to waste.

  9. While denying Donald Trump’s dictatorial impulses…

    When you have TDS, the whole world looks orange.

  10. >>what Trump has repeatedly threatened to do?

    it’s like you’ve never been to a mediation.

  11. Mr Sullum,
    Trump may talk like a dictator, but he does not act like one. Real dictators hide their actions in sweet oratory pretending to do everything for the good of the people while being applauded by a sycophantic media. That’s who you should worry about.

    1. Yeah, when Trump lays out his 5 yr. plan, then be afraid.

      1. cocksucker, we are at the nearing the end of 4 years and Trump did some great things for this country. So go fuck yourself idiot.

        1. “5 year plans” were a feature of Soviet Communism.

  12. How inspiring of Bill Barr to make a brave stand for civil liberties, at a time when that stance just happens to align with all the MAGA douchebags who are filling their diapers on TV.

    1. Still better than Biden filling his diapers on TV.

    2. You’re right.

      He should have advocated mowing them all down with machine gun fire and summarily endorsed martial law. Not only would that have been an example of disinterested politics (because everyone in the Trump administration must prove their worth by actively opposing Trump from within), but also a very libertarian thing to do.

    3. I don’t know about you, but I don’t look to the AG for inspiration. I’m pleased when they just do their job – which includes standing with the people against states that are violating the people’s civil liberties.

    4. and the uninformed liberal pussy crybabies wetting their pants here. go fuck yourself bitch.

  13. Well, thanks for saying that governors might not be able to order me to lock myself in my house indefinitely, I guess. But no thanks for saying they can tell me I have to cover my face and stay some arbitrary distance away from anybody when I do go out.

  14. Jacob looks silly delivering praise through clenched teeth. The headline was his pathetic cry for help.

  15. “While denying Donald Trump’s dictatorial impulses, William Barr notes that public health emergencies do not give governments unlimited powers.”

    He also denies that Trump has a unicorn horn in the middle of his forehead. Coincidence? I think not.

  16. Barr is a real ‘limited-government conservative,’ all right:

    https://www.documentcloud.org/documents/6509496-Attorney-General-Memo-Implementation-of-National.html?embed=true

    The Stasi had a similar program, called ZERSETZUNG. They also used vague, innocuous terms like ‘disruption’ and ‘early engagement’ and destroyed many thousands of innocent lives in the process.

    None of the MSM (yes, Fox is MSM, too) would touch this, but I was disappointed that Reason didn’t even mention it.

    1. Your local Dept. of Child and Family Services destroys lives every day. This looks like typical Pablum for LEOs. I’m not defending Barr here but what’s described in the attached document wouldn’t expand the police state by much.

  17. Funny how the TDS inflicted fake libertarians at unreason feel so threatened by Trump’s offhand comments and idle threats but they haven’t said a single word about the way the FBI, the NSA, the “Mueller” (Weismann) team, and the Southern District of New York have ridden roughshod over the rights of Donald Trump and any of his associates they could get their corrupt partisan hack hands on. The Reason Foundation and this magazine are a horrible disgrace. A bunch of two face frauds whom no one should take seriously. I think we have very good circumstantial evidence that their’s is one of the many sleazy corrupt DC establishments that have been bought off by the Chicoms.

  18. A great irony about the present lock down vs reopen fight is that in order for the lock down folks to actually engage in the fight they have to come out.

    LOL, the sheep’s version of a fight is mean Facebook post. Just reopen.

  19. William Barr defending Civil Liberties is a make believe moment. What is he going to actually do? File civil suits that will take about a year to wind their way through the various courts? More than likely he will be out of office by then.

    1. More than likely he will not. Joe Biden is not popular amongst the Bernie crowd. He has looked ineffective and weak while hiding out during this self imposed event. Democratic governors in Wisconsin, Michigan, and Pennsylvania have made their citizens quite angry. Those on the fence will tip the scales to Trump once again.

      In all if we get two more conservatives on the Supreme Court I will be quite happy.

  20. Whatever his rhetoric and bluster, Trump has not acted like a dictator during this crisis for the most part.

    Meanwhile new new details continue to emerge confirming that impeachment was essentially a soft coup carried out by people who knew they had no reliable intel.

    The entirety of 2019 was a field operation for the surveillance state who lied to spy on their political opposition or launched ridiculous witch hunt on reputable individuals based on nothing. Now their power grab has spilled into the shutdown.

    Trump is guilty of some bad policy. His sworn opposition trampled on the foundation of our nation in the name of keeping him accountable. Trump’s own record on civil liberties is far from perfect, but unless he orders people arrested for watching a sunset in their cars, the dictator tag is more appropriate for several governors who are being sainted by the media.

  21. Reason’s continuing concern about Trump’s rhetoric fails to account for the obstreperous, willful deceit and delay he encounters dealing with the other party. In the end he does not act as a dictator and this language may be the only way to get his opponents attention. Pay more mind to what he does and less to his hectoring of the Democrat opposition and you may be pleasantly surprised.

  22. Imagine the meltdown if Obama said he had absolute power?!? The hypocrisy is not funny, it is scary.

    The truth is no partisan cares about the constitution or laws, only that “their person,” has the power. They will do tremendous mental gymnastics to defend that person and whatever lies and abuse they engage in.

    1. For some reason, when I point this out to partisan hacks, they don’t believe me. They think that the other guys are hypocrites, and that their guys are white knights fighting the stupid and evil people on the other side.

      What I like to say about the Constitution is that partisans don’t actually respect it, they just want a Constitution-shaped club with which to beat on the other guys, when the other guys try to do things the partisans don’t like.

    2. Don’t have to imagine it, we saw it: DACA.

      And there was no meltdown.

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  24. The left’s ally the fake news media makes these claims on a daily basis but avoid giving any examples with only general allegations. That allows the uninformed and easily influenced sheep to make up their own occurrences to repeat until they actually begin to believe. A few words taken out of context and spun is all is needed for full blown delusional allegations.
    What should have been the normal disappointment when your candidate loses an election was blown completely out of proportion after President Trump was elected. All the predictions of dire consequences give as the reason for the resistance proved to be fantasies with none coming true and yet it never even slowed the attack on the Trump presidency. The fake news media has influenced the thinking of the sheep to the point of hate and violence for no real reason.
    AG Barr is a reasonable and intelligent man that states facts because of the evidence and what he plainly sees and is criticized for it. If what he said agreed with the left he would be a hero regardless if it was true or not. Facts truly are the enemy of the left.

  25. So Barr took time out from his busy schedule of trying to slap tech companies into creating government-accessible back doors into my phone long enough to “defend” civil liberties. That’s fucking big of him.

  26. While Barr’s Reason’s responses to questions about President Donald Trump’s extraconstitutional impulses were disingenuous at best, his their lack of comments about the need to respect civil liberties even in an emergency were encouragingdiscouraging.

    FTFY

    1. while morons like you continue to not see what’s going on we need to remember that the world needs ditch diggers also You are fucking stupid as a fucking rock.

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