Attorney General William Barr has signaled that the federal government will take action with regard to violations of the constitutional rights of citizens by state and local officials as part of Wuhan coronavirus ‘stay at home’ and shutdown orders.

Barr was addressing particularly violations of religious freedom.

And indeed, DOJ filed court papers in support of a Greenville, Mississippi, church prohibited from holding drive-in services, while fast food restaurants and liquor stores did not have similar prohibitions about cars parking in the parking lot. We covered the case in U.S. Dept. Justice files court support for Mississippi church barred from holding ‘drive-in’ service.

We are awaiting a court decision in the Mississippi, but in a similar case in Kentucky, a federal court granted an injunction, Federal Court Prohibits Louisville Mayor from Banning Easter Sunday Drive-in Church Service.

There have been a myriad of other seemingly irrational restrictions in various jurisdictions in petty ways that bear no meaningful relationship to disease control. It’s Governors and Mayors gone wild, flexing their muscles, sometimes with good intentions, sometimes not.

Now a coalition of conservative groups and prominent advocates have written to Barr seeking federal intervention, in a letter sent by Conservative Action Project.

Here is an excerpt from the letter, put together by the :

Dear Attorney General Barr,

During these troubled times, we want to thank you for your consistent stance to protect constitutional freedoms of the American people. Thank you, in particular, for focusing the Department of Justice (DOJ) on protecting religious freedom and First Amendment rights, as well as for your public statement against abuses of religious freedom through state and local coronavirus orders and the Statement of Interest filed by the DOJ in federal court in Mississippi just this week.

Because of the rampant abuses of constitutional rights and civil liberties through the myriad orders issued by the governors and local officials nationwide, as part of the response to COVID-19, we urge you to undertake immediate review of all the orders that have been issued by the states and local governments across the nation. Although the orders are for the purpose of slowing the spread of the coronavirus, the nature and enforcement of the orders have increasingly raised serious concerns about violating the basic protections and rights guaranteed under the United States Constitution. A few examples include:

  • Arresting pro-life counselors for peacefully standing outside an abortion clinic while maintaining social distance
  • Government officials arresting and handcuffing a father in front of his child for playing catch outdoors
  • Arresting a man for surfing
  • Ticketing citizens for attending a drive-in church service on church property, in their own cars.
  • Police officers telling an African American pastor that his rights are suspended because of coronavirus orders
  • Prohibitions on citizens’ rights to purchase firearms.
  • Claiming the right to assemble in protests against state shelter-in-place orders is not an “essential activity”

While government has the authority to act to protect public health during a time of pandemic, the United States Constitution requires that any government actions must be narrowly tailored to ensure that rights enshrined in the Constitution are not abrogated. Protecting the lives of its people is one of the important purposes of the very existence of our government, but there is no constitutional authority for any level of government to use the emergency as a justification for abusing its power and violating the most cherished Constitutional freedoms of the people of this country. Petty, would-be, dictators are attempting use the crisis as an opportunity to flex their perceived new muscles at the expense of the Constitution, and even telling citizens their right to protest such excess has been “suspended”.

The group is seeking the following action from DOJ:

As the nation’s chief law enforcement officer, we call on you to halt the spread of these unconstitutional orders and enforcement tactics against the American people. We urge you to immediately assemble a task force at DOJ to do the following:

  • Review all local and state orders
  • Ensure that every order is narrowly tailored to address specific, identified and identifiable risks, and are not wholesale restrictions on the rights of citizens
  • Issue national guidelines for enforcement that reflect the Constitutional rights of the American people
  • Notify those state and local officials of the Constitutional deficiencies in their orders and request voluntary revision or cessation of enforcement of provisions that are identified by your review as violating the Constitution
  • Initiate litigation to enjoin the enforcement of orders that are not narrowly tailored and which infringe upon the basic rights enshrined in the Constitution.

Many see this crisis as an opportunity to reduce liberty and enlarge government power in permanent ways. We will do all in our power to make sure this does not happen. We urge the DOJ to take numerous, specific actions, right now, to focus and act against this disturbing new danger to our country’s future.

Although I think Barr’s heart is in the right place, I don’t see any federal action except in very clear cases of constitutional violations, such as the church drive-in cases. In those cases, the underlying restriction was not challenged, only that it was applied in a way that burdened religious groups more than non-religious groups. I also could see federal action for 2nd Amendment abuses.

But I don’t expect federal action to go beyond that.  It will be up to individuals to challenge unconstitutional government action in court, but I’m not expecting courts to act if there is a straight-faced health justification.

To a large extent, only political protests and pressure can address the irrational restrictions being imposed. The small number of protests that have taken place so far seem to have had an impact.

 

 
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