Attorney General William Barr said on April 21 that the Justice Department (DOJ) might consider intervening in lawsuits against governors’ lockdown measures if states continue to extend them as COVID-19 cases subside.
Barr made the comments during a radio interview on The Hugh Hewitt show where he said that while it was necessary for states to place measures to control the spread of the CCP virus pandemic, these orders have caused “unprecedented burdens on civil liberties.”
“The idea that you have to stay in your house is disturbingly close to house arrest. I’m not saying it wasn’t justified. I’m not saying in some places it might still be justified. But it’s very onerous, as is shutting down your livelihood,” he said.
Barr said that the DOJ has been monitoring the types of restrictions governors are imposing on states 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 this 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.
“As lawsuits develop, as specific cases emerge in the states, we’ll take a look at them,” Barr said.
This comes as protests against lockdown measures erupt across the country. Many protestors are frustrated by restrictions that caused Americans to lose their jobs as well as plunge the states into a deep economic slump. Some restrictions have been quite controversial, such as banning the sale of seeds in some stores.
President Donald Trump appeared to support the protests, issuing separate Twitter posts on April 17 calling to “LIBERATE MINNESOTA,” “LIBERATE MICHIGAN” and “LIBERATE VIRGINIA.” Then on April 18, Trump defended the demonstrations, saying, “These people love our country. They want to go back to work.”
Trump and several governors have expressed an eagerness to reopen the economy. The White House has introduced guidelines that would help governors reopen their states in three stages. These guidelines will still contain social distancing restrictions in the first phase, which will be slowly eased in subsequent phases.
The president said governors would ultimately have the final say on tailoring an approach to reopening the economy to their state.
“If they need to remain closed, we will allow them to do that, and if they believe it is time to reopen, we will provide them the freedom and guidance to accomplish that task, and very quickly, depending on what they want to do. We are also encouraging states to work together to harmonize their regional efforts,” Trump said on April 16.
During the interview, Barr indicated that governors’ lockdown restrictions should only apply for the limited purpose of slowing down the spread of the virus, as they were never meant to be permanent measures. When there is some progress in mitigating the spread, states need to begin developing more targeted approaches, he said.
“This is a little bit like … fighting a cancer, which is, you know, sometimes cancer is spreading, and one of the treatments you can use is chemotherapy to drive it back and localize it and make it more susceptible to surgery or more targeted things like radiation or even immunotherapy,” Barr said. “But your first thing is to drive it back to a manageable, a more manageable state. And that’s what we’re doing and have done.”
“And the question is, you can’t just keep on feeding the patient chemotherapy and say, ‘Well, we’re killing the cancer,’ because we were getting to the point where we’re killing the patient. And now is the time that we have to start looking ahead and adjusting to more targeted therapies.”
He added that governors would need to adapt their orders based on the situation on the ground, while also maintaining the necessary measures to protect public health.
“I think we have to make a distinction between orders that tell people—or principles that say, you know, you have to keep your distance of 6 feet, you should be washing, you should be wearing PPE when you’re out and about,” Barr said. “Those are fine because I think those, you know, arrest the transmission from person to person.”
“But blunter instruments that say everyone has to shelter in place, to stay at home regardless of the situation on the ground, or, you know, you 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. And I think you know, as I say, I think we have to adapt more to the circumstances.”
‘You Can’t Single Out Religion for Special Burdens’
The DOJ recently filed a statement of interest in support of a Mississippi church that sued the city where it’s located and its mayor for ticketing congregants during a drive-in service.
In that case, Mississippi’s governor had designated churches and other religious entities as an “essential business or operation” that can operate as long as they abide by the Centers for Disease Prevention and Control guidelines.
But the City of Greenville issued an executive order on April 7 barring churches from holding in-person or drive-in services until the governor’s shelter-in-place order is lifted.
While many churches have moved services online or to teleconference calls, Temple Baptist Church doesn’t have a website for live streaming, and its congregants don’t have social media accounts, the church stated.
On April 8, the church broadcasted its service over a low-power FM transmitter to congregants who sat in parked cars outside the church with their windows rolled up. As they listened to the sermon, police officers began issuing $500 tickets to congregants who refused to leave, even though nobody was outside his or her car, the church stated.
The church subsequently sued the city on April 10, seeking to block the mayor’s order. It alleges that the order violates the constitutional right of freedom to exercise religion.
The DOJ argued in its statement that although local and state officials need to impose restrictions to enforce social distancing, they aren’t allowed to single out church and religious entities for distinctive treatment.
Any government restriction must be neutral, in that any limit applied to religious activity must be used in the same way as to a nonreligious activity, Barr said in a statement.
“For example, if a government allows movie theaters, restaurants, concert halls, and other comparable places of assembly to remain open and unrestricted, it may not order houses of worship to close, limit their congregation size, or otherwise impede religious gatherings,” he said. “Religious institutions must not be singled out for special burdens.”
The city’s mayor eventually dropped the fines. It also allowed drive-in services after receiving further guidance from the state’s governor.