Barr Directs Prosecutors to Monitor Lockdown Restrictions That Violate Constitutional Rights

'The Constitution is not suspended in times of crisis,' the attorney general says
By Janita Kan
Janita Kan
Janita Kan
Janita Kan is a reporter based in New York covering the Justice Department, courts, and First Amendment.
April 27, 2020Updated: April 29, 2020

Attorney General William Barr directed federal prosecutors on April 27 to keep an eye out for lockdown measures aimed at controlling the spread of the CCP virus that may be infringing on constitutional rights.

In a brief memorandum (pdf), Barr urged U.S. attorneys general across the country to “be on the lookout” for state and local restrictions that could be running afoul of constitutional rights and civil liberties of individual citizens.

Those restrictions that attempt to mitigate the spread of the pandemic, he said, are “necessary,” but “there is no denying that they have imposed tremendous burdens on the daily lives of all Americans.”

Barr noted that the Justice Department (DOJ) previously issued guidance to state and local authorities explaining that even during times of emergencies, the Constitution and federal laws prohibit discrimination against religious institutions and religious believers.

“The legal restrictions on state and local authority are not limited to discrimination against religious institutions and religious believers,” Barr wrote. “For example, the Constitution also forbids, in certain circumstances, discrimination against disfavored speech and undue interference with the national economy.”

He added that in the event an ordinance “crosses the line” between stopping the spread of the virus and violating constitutional and statutory protections, the DOJ “may have an obligation to address that overreach in federal court.”

“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,” Barr said. “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.”

The memo follows Barr’s comments during an interview on the Hugh Hewitt radio show on April 21, when he said the DOJ might consider getting involved in lawsuits against governors’ lockdown measures if states continue to extend them as COVID-19 cases subside.

During the interview, he said the DOJ has been monitoring the types of restrictions governors are imposing during the pandemic. If the department believes any restrictions go “too far,” he said, the department may first attempt to negotiate with the states to roll back or adjust the orders.

If the governors don’t cooperate, and individuals bring lawsuits against them, then the DOJ may file a statement of interest in support of the individuals bringing the cases, he said.

The DOJ took that approach recently by filing a statement of claim in support of a Mississippi church that appeared to be singled out by a local mayor’s order against drive-in services.

His comments come as protests against lockdown measures erupt across the country.

Many Americans are frustrated by restrictions that caused them to lose their jobs , while plunging their states into a deep economic slump. Some restrictions have stirred controversy over their relevance to the pandemic, such as Michigan banning the sale of seeds in some stores.