Barr to Governors: You Answer to Me Now

by Daniel A. Rosen |

According to a recent Associated Press article (Barr to Prosecutors: Look for Unconstitutional Virus Rules, Michael Balsamo, April 27, 2020) Attorney General William Barr “ordered federal prosecutors across the U.S. to identify coronavirus-related restrictions from state and local governments ‘that could be violating the constitutional rights and civil liberties of individual citizens.'”

As a state prison inmate well familiar with the state’s proclivity toward violating one’s rights, I had to read that head-snapping lead sentence three times; I thought I must have misunderstood. So, this means the Feds are going to protect everyone from unconstitutional abuses by the States of all types – right? The memo Barr sent to U.S. Attorneys goes on to say that “if a state or local ordinance crosses the line from an appropriate exercise of authority‚Ķinto an overbearing infringement of constitutional and statutory protections, the Department of Justice may have an obligation to address that overreach in federal court.”

The DOJ has already filed a statement of support on behalf of the Lighthouse Fellowship Church in Chincoteague, Virginia, suing Governor Ralph Northam on the grounds he’s violated their First Amendment rights by preventing them from holding worship services. A preliminary injunction filed by the church against the Governor’s executive orders was rejected by the 4th Circuit.

So, to recap: the President abdicated federal responsibility up front, leaving states pretty much on their own to find what they needed to fight the pandemic; he then accorded himself sole authority for deciding when and how to reopen the country; when that didn’t go over too well, he told the Governors it was their problem to figure out the recovery, that they’d have to wear the blame or credit; and now he’s going to take them to court if he feels they don’t get it right. Got it. Well, consistency is the hobgoblin of small minds, after all – not stable geniuses.

Given AG Barr’s concern, I suppose my fellow inmates can start celebrating and filing their lawsuits against the states now – right? After all, once the pandemic is over, the DOJ will surely direct the same scrutiny toward regular abuses in state and local correctional facilities that consistently violate millions of Americans’ Eighth Amendment right to freedom from cruel and unusual punishment.

Publications like Prison Legal News are full of stories that detail cruel and unusual treatment carried out with impunity in state prison facilities, month after month – and the well of examples never runs dry. Sure, states are sued over mistreatment all the time, but you won’t find Barr’s Justice Department filing briefs on these defendants’ behalf. Not to mention states regularly trampling on arrestees and inmates’ rights of speedy trials and due process, against self-incrimination or unreasonable searches, and myriad other infringements of constitutional liberties.

These are areas where the federal government has traditionally been hesitant to intercede on behalf of inmates and rule against states. Progress made under the Obama-era Justice Department through reform efforts and consent decrees against state prison systems has been steadily undone over the last four years by Trump, Barr, and Sessions before him. Constitutional scholars everywhere will have sat up and taken note of this reversal by Trump and the sea-change in the balance between states and the federal government – right?

Moreover, there’s no way AG Barr would exercise this kind of eye-popping big-G Government authority in a discretionary manner intended to simply boost the President’s political fortunes in red or purple states in an election year – right? Especially when wielded in such a craven manner, as a blatant wedge issue during a worldwide pandemic, ostensibly to protect civil liberties (though actually undermining core conservative tenets).

The federal government must have abruptly realized the need to correct the wrong that deference to state’s rights can lead to when small-government Republican policies are unchecked and the little guy’s rights have no protection from the Feds. I mean, this can’t be a principle that’s only of utmost priority when it comes to the politics around a pandemic that could ruin Trump’s re-election chances – right?

Yeah, I figured I was probably wrong. AG Barr is one of the most dangerously political Attorneys General we’ve had in decades. While initial hopes were high that he’d be another ‘adult in the room’ reining in Trump’s worst impulses, he’s become the worst sort of enabler: the kind that dictators value, who bolster strongman regimes with a veneer of legitimacy and legality. This latest overreach on his part, in service of Trump’s pandering to his base, is a clear abuse of DOJ’s prosecutorial discretion. And few things are more corrosive to our democracy.

Then again, selective application of the law and the weight of federal authority has been a hallmark of Trump’s administration. He asked James Comey to “go easy” on Mike Flynn, remember – and now the charges have been dropped completely. He pardoned Sheriff Joe Arpaio before he was even sentenced, in complete contravention of past practice. And he has gone after numerous public servants like Andrew McCabe who’ve given their entire career to this country, when they disagreed with him or investigated White House misdeeds.

There’s nothing surprising about Barr wanting to misuse U.S. Attorneys’ authority this way, while looking the other direction on so many other abuses by states of individual rights, like in prisons. The DOJ has become Trump’s political instrument, no longer the honest broker that ensures our laws are faithfully executed. Why not just give Trump four more years or cross out the Tenth Amendment entirely. It can’t hurt our democracy too much – right?

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