Attorney General Bill Barr received a lot of criticism for comments he made about the possibility that the Department of Justice would go to federal court to challenge some state lockdown policies. I defended him from that criticism (as did Andy).
Now Philip Rotner is making some new criticisms of Barr over these issues. They don’t change my view.
Rotner argues that Barr’s concern about states’ restrictions on religious services is selective. “Religious liberty is not the only right protected by the Constitution. A number of states have used coronavirus restrictions to curtail abortion access, arguing that it is non-essential. Is Barr going to challenge these ordinances, too?”
This complaint is unpersuasive for three reasons. First, the Constitution actually protects religious exercise — it’s right there in the text of the First Amendment — while the federal courts are just pretending that it protects abortion. The Attorney General is not, in my view, under any obligation to conduct litigation based on a view of the Constitution that he does not hold and that is incorrect. It is possible, of course, to take a contrary view, but one should not pretend that it is obviously true.
Second, even assuming that abortion is on par with religious liberty as a constitutional right, there is a distinction between challenging a regulation singling out religious services and challenging a regulation that is merely being applied to abortion clinics.
Third, this isn’t an argument against Barr’s view that the Department of Justice may have to go to federal court if states violate the Constitution — it’s an argument that he should be more willing to do that. It would be a bad thing if Alabama started quartering troops in people’s homes without their consent and Barr let it slide. That bad thing would not justify allowing cities in Mississippi to abridge religious freedom, too.
Next, Rotner objects to Barr’s having said that states could trigger intervention through “undue interference with the national economy.” Rotner calls that phrasing
both expansive and vague. For starters, how are the lawyers at the Department of Justice supposed to reasonably calculate the national economic consequences of state and local ordinance? The answer, of course, is that they cannot. The only purpose of such a threat is to intimidate lawmakers into not adopting measures that might frustrate or delay Trump’s “open America again” policy.
In the memo in question, Barr says that the Constitution forbids state interference with the national economy “in certain circumstances.” That is a reasonable inference from the constitutional text, and it lines up with scores of decades of Supreme Court precedent. Whether a state is running afoul of the dormant commerce clause does not turn on a calculation of the national economic consequences of state and local ordinances. (Somewhat off point, to say that Trump’s desire to “open America again” amounts to a “policy” is an overstatement.)
Finally, Rotner complains that Barr offered an interviewer his opinions about how lockdowns ought to proceed. He writes as though Barr intended these opinions as a guide to what his litigation strategy would be, even though Barr never said any such thing. Among the opinions to which Rotner objects is this one: “I think the president’s guidance has been, as I say, superb and very commonsensical, and I think a lot of the governors are following that.”
Barr’s opinion isn’t mine, and I think Cabinet secretaries ought to be embarrassed to say such things. I can see why Rotner finds the comment objectionable. I don’t think it has much to do with the Attorney General’s duties under the Constitution.