Donald Trump is calling for his followers to LIBERATE the states from the social-distancing measures that are staving off an even greater coronavirus death toll. Trump’s enforcer, Attorney General Bill Barr, is now poised to support Trump’s call for insurrection by turning to the federal courts—seeded with a legion of newly installed right-wing jurists—to undermine critical public-health protections on his boss’ behalf.
If Barr and Trump get their way, the states will soon be “opened up” to the virus, and thus to a massive number of needless deaths.
While Trump began openly attacking his own social-distancing guidelines over the past week, Barr has been doing so for some time. During an April 8 interview on Fox News, the AG described the steps belatedly taken to limit spread of the virus as “draconian.” He also said that “after April 30,” the Department of Justice would begin to scrutinize such “restrictions on our liberty” more closely.
Days later, some of the same big-money donors that had funded the Tea Party began fabricating a movement that responded to Trump’s recent tweets by sending small numbers of protesters to mass at various statehouses to decry the public-health regulations that Trump claims are intended to undermine Americans’ constitutional rights.
Last Friday, members of a group founded by former Reagan Attorney General Edwin Meese wrote to Barr, asserting that states are engaged in “rampant abuses of… civil liberties” that raise “serious concerns about violating the basic protections and rights guaranteed under the United States Constitution” and asking the DOJ to “undertake immediate review of all the orders that have been issued by the states and local governments” to protect against the spread of the coronavirus.
The federal government virtually never engages in such an intrusive, nationwide review of state and local health regulations, let alone emergency regulations that were imposed at the express request of the president for the purpose of saving lives in the midst of a raging pandemic.
Furthermore, Barr is a charter member of the Federalist Society, which supplied the president with the names of many of the young extremist lawyers who Trump and Mitch McConnell have been packing onto the federal judiciary. These conservatives have long claimed to be champions of “states’ rights” and opponents of earlier “activist” judges who, they claimed, were far too willing to interfere with state governance in the name of constitutional and civil rights.
Yet there is every reason to believe that Barr, as well as many of the judges Trump has placed on the bench, will enthusiastically comply with the new call to undertake an offensive against states’ emergency health measures.
In fact, as the activists noted in their April letter, Barr has already taken to the courts to oppose a local coronavirus health regulation. On April 14, well before the expiration of Trump’s own call for strict social-distancing measures during the “30 days to stop the spread,” the DOJ intervened in a Mississippi case to support a challenge to a municipal regulation barring “drive-in” church services.
In the face of the DOJ’s action, along with pressure from the state’s GOP governor, the defendant city relented and allowed the services to proceed. While the danger posed to public health in that case may well in fact have been limited, the message was clear: Instead of supporting state and local efforts to protect citizens from the virus, the federal government is now arrayed to oppose them.
The DOJ’s intervention in Mississippi immediately followed a Kentucky case in which a newly installed judge, who Trump has already nominated for a seat on the elite D.C .Court of Appeals, grandstanded by issuing an emergency ruling against a Louisville prohibition on a church’s worship practices. The judge took the time to write a lengthy opinion containing an impassioned screed against the city’s purported intrusions upon religious freedom, but not to hear evidence from the city before issuing his emergency order. As the city later demonstrated, the church actually had a recent history of flaunting social-distancing practices and endangering its parishioners.
Then on Saturday, yet another recent Trump appointee to the federal bench took a further whack at a critical public-health regulation, issuing an emergency order nullifying the application of Kansas Democratic Gov. Laura Kelly’s ban on gatherings of more than 10 people at church services. The order came after Kansas’ own Supreme Court had declined to grant similar relief at the request of representatives of the state’s GOP-controlled legislature. The federal judge’s order recited a set of safety precautions that the church claimed it would follow, but offered no explanation for the judge’s choice to override the existing rules which—as explained—were grounded in guidance offered by Trump’s own public-health professionals.
Both rulings came after religious gatherings across the country have already served as deadly vectors for the spread of the coronavirus—and as Trumpist lawmakers are planning further judicial interventions of their own. The speaker of Wisconsin’s state assembly—last seen dressed in full hospital garb telling voters they were perfectly safe standing to cast ballots in an election the Wisconsin Supreme Court, and then the U.S. Supreme Court, outrageously refused to delay—is now threatening to bring a lawsuit to nullify that state’s stay-at-home rules. And GOP legislators in other states are following Trump’s and Barr’s calls by threatening similar litigation and other challenges, in some cases only days after authorizing their governors to take emergency measures to protect the public from the pandemic.
The spectacle of having judges second-guessing the determinations of state health professionals serves Barr and Trump’s broader goal: to undermine the legitimacy and authority of governors, some of them Democrats in swing states, who have received far more robust public support for their effective responses to the pandemic than Trump has for his catastrophically late efforts.
Barr’s efforts now to undermine the authority of governors is of a piece with his past work undermining the legitimacy of his own Justice Department, as well as the nation’s intelligence community and diplomatic corps, to help Trump escape the consequences of his criminal conduct during Robert Mueller’s investigation of Russian interference in the 2016 election and then his scheme to pressure Ukraine to announce an investigation of his 2020 rival, Joe Biden.
Yet while Barr’s past efforts to shred public confidence in governmental institutions have done a great deal of damage to the nation, the attorney general’s latest effort to misuse the authority of the law, and of the federal courts, to help Trump out of a political jam is likely to have more immediate, and fatal, consequences.