Attorney General Bill Barr caused something of a stir yesterday by quipping that some of the state shelter-in-place restrictions to stem the coronavirus epidemic have been akin to “house arrest.” In essence, though, he was simply conveying the same civil-rights theory that we tracked here less than a week ago, when the Justice Department intervened in a lawsuit brought by Christians whose Mississippi town was capriciously denying them the right to communal worship.
As the Civil Rights Division’s submission to the Mississippi federal court framed the matter: “There is no pandemic exception . . . to the fundamental liberties the Constitution safeguards.”
This is exactly the line the AG took in Tuesday’s wide-ranging interview by Hugh Hewitt. Government restrictions on liberty, whether federal, state, or municipal, are only justifiable when there is a compelling public interest; and even then, they must be narrowly tailored: the least restrictive means of burdening our fundamental rights. There is no doubt that the state’s interest in preventing the spread of infectious disease is compelling; but shelter-in-place regulations can be too draconian if the state can sensibly pursue its legitimate public-safety objectives through less burdensome measures — social distancing practices, wearing protective gear, encouraging hygiene, etc.
Barr elaborated that government’s legitimate interests evolve over time. When the coronavirus began its alarming spread, the priority was to “flatten the curve” — i.e., not allow the virus to spread so rapidly and broadly that it would overwhelm our hospitalization capacity. That was an argument for taking more aggressive steps on a temporary basis. It is a key attribute of executive authority in our federalist system, the AG observed, that the president and governors have the power and flexibility to do that while adjusting to conditions on the ground, which vary from place to place.
Now we are moving into a new phase, in which the federal and state governments are undertaking to rejuvenate commercial and social life. That’s also a compelling government interest, and one in which our civil liberties are owed more deference. Governmental restrictions, Barr stressed, have to be narrowly tailored in this phase, too.
Consequently, if states adopt restrictions that are too stifling of fundamental liberties, or if restrictions are enforced in a draconian or invidious manner, the Justice Department stands prepared to intervene, just as it did in the Mississippi case. That episode suggests, we may hope, that the fact that DOJ is willing to defend civil rights will make states and municipalities more cautious in the restrictions they impose.
The attorney general made a number of other interesting points. I’ll touch on three of them.
First, many of the state restrictions on commercial activity have focused on the question of whether, in the judgment of the governors or municipal authorities, businesses are “essential” or “non-essential.” This has led to some blatantly politicized regulating — abortion clinics are essential, elective surgery is not; union activity is essential, gun shops are not; sales of Lotto tickets are essential, sales of planting seeds are not; and so on.
Barr appears intent on putting a stop to this arbitrary and ideologically driven line-drawing, not by substituting his policy preferences but by pointing out that states are asking the wrong question. It is not whether a particular business is “essential” or “non-essential”; it is whether the business can be operated safely. If it can be, the states are obliged to permit it to operate, particularly given that it is in the interests of businesses and their customers to observe safety precautions.
Second, the AG acknowledged that the Justice Department was seeing a “stepped up” level of provocative activity by the Communist Chinese government, including espionage. He declined to get into specifics, but said it is a “serious issue,” and “we as a consequence have to increase our defense against it.”
I’d note that in late January, the Justice Department charged the head of Harvard’s Chemistry and Biology Department, along with two Chinese nationals, in connection with work he secretly did as a “strategic scientist” for China’s Wuhan University of Technology. This was part of the Chinese regime’s “Thousand Talents Plan,” which the Justice Department described as follows:
China’s Thousand Talents Plan is one of the most prominent Chinese Talent recruit [sic] plans that are designed to attract, recruit, and cultivate high-level scientific talent in furtherance of China’s scientific development, economic prosperity and national security. These talent programs seek to lure Chinese overseas talent and foreign experts to bring their knowledge and experience to China and reward individuals for stealing proprietary information.
Just a month ago, moreover, a West Virginia University physics professor pled guilty to a fraud charge in connection with an agreement he made to work for the Chinese Academy of Sciences. Once again, the scheme was part of the “Thousand Talents Plan.”
Third, on the matter of Justice’s investigation into the Trump-Russia probe, led by Connecticut U.S. attorney John Durham, the attorney general said that no announcement about the matter — whether indictments, a report of some kind, or an announcement that the cases is being closed — is “imminent.” Interestingly, Hewitt pressed Barr about Justice Department guidance that discourages prosecutors, in some cases, from filing criminal charges on the eve of an election. The AG pointedly replied that this guidance applies to candidates in the election, and that no one under investigation by Durham falls into that category.
It is reasonable to glean from this that we are probably weeks away, if not more, from any definitive announcement about the Durham investigation.