The document William Barr’s Justice Department filed in an Illinois federal court on Friday was its latest incoherent broadside compromising the credibility of the government, this time by attacking policies advocated by the president’s own Coronavirus Task Force and disingenuously evading a test of Barr’s own contention that stay-at-home orders are becoming unconstitutional—all to help a fanatical GOP state legislator get a bogus lawsuit in front of a friendly state judge.
The lawsuit at issue was brought by Darren Bailey, a notoriously buffoonish Republican member of the Illinois House of Representatives who was in the news recently on account of his refusal to wear a mask in the legislative chamber in compliance with a resolution passed with overwhelming and bipartisan support, resulting in his ignominious and unceremonious expulsion from the floor.
When not busy seeking to recklessly endanger his fellow legislators, Bailey has been suing for the right to do the same to his constituents. In April, Bailey filed suit in a Southern Illinois state court, asserting that the stay-at-home order Governor Jay Pritzker imposed in accordance with the president’s then operative “Coronavirus Guidelines for America” (which began “Listen to and follow the guidelines of your STATE AND LOCAL Authorities”) violated his “liberty” rights.
On April, 27, a Republican judge in Bailey’s district, Mike McHaney, granted Bailey a symbolic initial victory, by signing an order drafted by Bailey’s counsel asserting that Bailey had a “liberty interest to be free of Pritzker’s executive order of quarantine in his own home” and issuing emergency injunctive relief preventing the order from being enforced against Bailey alone. This presumably permitted the previously restrained legislator to walk around freely mocking other people wearing masks. Other lawsuits against Pritzker’s orders have failed in both state and federal courts; accordingly, keeping the case before McHaney (who refused a request to transfer the case to Springfield, the state capital) was of obvious importance to Bailey.
More recently, Bailey agreed to termination of the emergency order he had obtained, apparently to avoid the trial court’s order being reviewed by an appellate tribunal. He then filed an amended complaint in the same court further alleging that the governor has overstepped his authority, based on supposed claims that appear to arise under both state law as well as the United States Constitution. Because federal courts have jurisdiction over cases asserting federal constitutional violations, the governor exercised the state’s right to have the case removed to a federal court, and thus took it away from the judge who has been so solicitous to Bailey. Bailey responded by filing a motion seeking to have the case remanded back to state court.
Yesterday, Barr parachuted in a crack team of lawyers from the DOJ’s Civil Rights Division in an effort to aid Bailey’s effort to get the case out of the dangerous confines of federal court, and back in McHaney’s friendly courtroom.
Barr has recently kept many of those same lawyers busy filing papers alleging, just as Bailey has, that state and local public health regulations are unconstitutional.
To date, the DOJ has intervened only in supposed “civil rights” cases involving public health rules that impose limitations on religious gatherings. Barr shares Donald Trump’s view that public health concerns should not overrule the freedom of reckless members of the clergy to place their flocks at unnecessary danger by worshipping and singing together in large groups (and in enclosed spaces), despite the now ample epidemiological evidence such gatherings can lead to large death tolls.
Now that Trump has taken it upon himself to “override” “Democrat” governors by pronouncing church services to be “essential,” regardless of the risks they may pose, Barr likely will soon be involving the DOJ in more such cases.
But Barr has made claims about the purported federal constitutional right to risk infection that extend far beyond the confines of churches. In early April, Barr described the stay-at-home mandate most states had by then imposed at the president’s behest as “draconian,” and suggested (without explanation) that they might somehow become unconstitutional. Later that month, Barr issued a memorandum directing the nation’s U.S. attorneys to be on the lookout for public health rules that might, among other things, constitute “undue interference with the national economy.”
And just this week, the same head of the civil rights division who intervened on behalf of viral liberty warrior Bailey sent a letter to Los Angeles City and County officials vaguely asserting that they might run afoul of the Constitution if they choose to continue to vigorously enforce public health rules with a stay-at-home order in an area Trump adviser Dr. Deborah Birx described this week as a particularly concerning hot spot. The letter echoed Barr’s favorite rhetoric, describing public health measures as potentially “arbitrary and heavy handed.”
Given the DOJ’s now repeatedly stated claims that public health measures might be unconstitutional, you might reasonably expect that Barr and his minions would join Bailey in making such a claim against Illinois and its governor. But you would be wrong. As I noted, it is because Bailey took Barr’s absurd contentions seriously, and filed a complaint asserting that Pritzker’s stay-at-home order violated his constitutional rights that the governor was able to move the case to federal court, and take it out of the hands of the “liberty”-obsessed state judge who previously ruled in Bailey’s favor.
Barr’s DOJ responded by joining Bailey in telling the federal court that Bailey’s case has nothing to do with the United States’ Constitution. That is debatable. Bailey asserts violations of multiple rights that appear to purportedly arise from the Constitution; indeed, the court order that Bailey’s own lawyers reportedly drafted states as its sole basis for relief the denial of an apparently purported constitutional “liberty” right.
According to the federal civil rights lawyers, however, the only actual issue in the case is whether Pritzker has run afoul of Illinois state law. The DOJ’s brief goes on to offer an elaborate explanation of why Bailey’s state law claims are meritorious, one that–while hardly convincing–sounds far better than what Judge McHaney was able to come up with with Bailey’s help.
Yet one might wonder why the DOJ was in a federal court, arguing that a plaintiff’s apparent federal claims should be disregarded, and then lending a hand in making arguments about issues of Illinois state law? Indeed, immediately after doing so, the DOJ offhandedly acknowledged to the court that the “United States does not typically weigh in on alleged violations of state law.” That is quite an understatement. It is a cardinal principle of the doctrine of federalism to which Barr and his fellow right-wing ideologues purport to adhere that the federal government is supposed to keep its hands off of state laws, and certainly should not be providing tutorials on how they should be interpreted.
But the sheer disingenuousness of the DOJ’s submission does not end there. After claiming that Bailey’s case does not actually involve any alleged federal constitutional violations, the DOJ devotes pages to asserting how the state of Illinois might nonetheless be violating the United States Constitution. That is, the DOJ details just why the federal constitutional claims that the DOJ claims Bailey is not asserting purportedly have merit.
Thus, Barr wants to have it both ways: leaving the impression that Illinois is violating the Constitution by faithfully implementing the CDC’s guidelines during a deadly health emergency, while denying the federal court the opportunity to actually rule on that bogus contention.
Barr’s strategy in the Bailey case bears a curious similarity to the AG’s approach in the criminal case of Trump crony Michael Flynn, in which the department has filed a motion to dismiss its own indictment of Flynn (based on contentions that the FBI, and a suggestion that Special Counsel Robert Mueller, engaged in misconduct), while also asserting that the court cannot inquire into the veracity of those contentions.
The DOJ’s absurd “statement of interest” is likely to have little actual impact on Bailey’s case. The document is so incoherent and in such obvious bad faith that it could actually decrease the chances of Bailey succeeding in getting his case sent back to McHaney’s friendly courtroom.
But it is clear that the submission actually has another purpose. Like the DOJ’s letter to Los Angeles, and Trump’s declaration of his supposed discovered power to “override” recalcitrant governors, the DOJ’s Illinois submission is part-and-parcel of a thuggish campaign to press states to “open up” or else. Trump plainly believes his only path to re-election is to bully the “Democrat” officials who are in charge of cities and states that comprise the heart of the nation’s economic engine to stop following the recommendations of medical professionals in determining how to to protect the health of their citizens, and get the country “moving” in advance of the election.
But while Bill Barr has so far succeeded in shielding Trump from facing any legal consequences for his serial lawbreaking, the AG just might not be as successful in using the courts to bully state officials into recklessly exposing their constituents to a deadly virus that has already taken nearly 100,000 American lives.