WASHINGTON, D.C. – Will states like New Jersey soon need to defend their infringements upon civil liberties in federal court?
Possibly. One week after indicating that he found some state COVID-19 lockdown measures “disturbingly close to house arrest” during a national interview, U.S. Attorney General William Barr took a big step on Monday to lay the groundwork for litigation against state and local governments if his office deems it necessary.
The AG’s memo – click here – directs 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.”
“The legal restrictions on state and local authority are not limited to discrimination against religious institutions and religious believers,” Barr explained. “For example, the Constitution also forbids, in certain circumstances, discrimination against disfavored speech and undue interference with the national economy. If a state or local ordinance crosses the line from an appropriate exercise ofauthority to stop the spread of COVID19 into an overbearing infringement ofconstitutional and statutory protections, the Department of Justice may have an obligation to address that overreach in federal court.”
Barr designed two senior federal law enforcement officials to coordinate monitoring efforts and, “if necessary, take action to correct them.”
“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.”
In his April 21st interview with Hugh Hewitt, Barr said “not yet” when asked if any then-existing state or local orders warranted DOJ intervention.
However, states like New Jersey continue to impose severe restrictions on basic rights including the right to gather for worship services and a blanket closure of private retail stores. Barr’s memo lays the groundwork for a possible lawsuit if governors like Phil Murphy continue to push the envelope or refuse to reopen beyond a point which the Trump Administration deems the lockdowns reasonable.
Murphy announced on Monday that New Jersey’s lockdown would continue indefinitely.