As local and state governments across the country continue to enforce strict lockdown measures in response to the COVID-19 pandemic, U.S. Attorney General William Barr issued a memo Monday ordering federal prosecutors across the country to be "be on the lookout for state and local directives that could be violating the constitutional rights and civil liberties of individual citizens."
The memo to U.S. attorneys' offices across the country said that the Department of Justice may have an obligation to intervene in federal court "if a state or local ordinance crosses the line from an appropriate exercise of authority to stop the spread of COVID-19 into an overbearing infringement of constitutional and statutory protections."
The Department of Justice (DOJ) has already waded into at least one such case in Greenville, Mississippi, where city officials attempted to shut down drive-in church services. The DOJ filed a statement of interest in a federal civil rights lawsuit filed by one Greenville church against the city, writing that the facts "suggest that the city singled out churches for distinctive treatment."
Although local and state governments have broad emergency powers—including temporarily suspending gatherings and other normally protected activities—officials still may not impose restrictions that are overly broad or discriminate against one group over another.
As Reason's Jacob Sullum detailed, a federal judge issued a temporary restraining order earlier this month against the mayor of Louisville, Kentucky, who had tried to ban drive-in Easter services.
Reason has been tracking absurd and overbearing government coronavirus crackdowns, such as Pennsylvania's impressively dumb attempts to close liquor stores, undercover cops arresting home beauty business owners, and a Hawaii brewery that came under investigation for giving away free hand sanitizer.
In the memo, Barr tapped the head of the Justice Department's Civil Rights Division, Eric Dreiband, and Matthew Schneider, the U.S. Attorney for the Eastern District of Michigan, to lead the DOJ's oversight of local and state government measures related to COVID-19.
"Many policies that would be unthinkable in regular time 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," Barr concluded. "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 the public is protected."
One area that the Justice Department has direct control over, unlike the policies of cities and states, is the federal prison system, where tens of thousands of inmates are at risk of infection. Although Barr has ordered the Bureau of Prisons to release elderly and at-risk inmates who meet certain criteria, the rollout has been contradictory and confusing, leaving inmates and their families in a state of constant dread.