Common sense about states rights during a pandemic

Attorney General Barr went on Hugh Hewitt’s radio show yesterday. He discussed possible conflicts between federal law and what state governors are doing in response to the Wuhan coronavirus.

Barr stated:

Well, they can be in tension, and there are potentials for collision. I think you know, when a governor acts, obviously states have very broad police powers. When a governor acts, especially when a governor does something that intrudes upon or infringes on a fundamental right or a Constitutional right, they’re bounded by that. And those situations are emerging around the country, to some extent. And I think we have to do a better job of making sure that the measures that are being adopted are properly targeted.

They also can run into the federal role under the Commerce Clause, the so-called Dormant Commerce Clause. We do have a national economy which is the responsibility of the federal government. So it is possible that governors will take measures that impair interstate commerce. And just where that line is drawn, you know, remains to be seen.

Barr’s response has been criticized by some on the left, but it ought not be controversial. It’s certainly possible that a state or local official might exercise his or her broad police powers in ways that infringe on a constitutional right, and Barr is right that this has happened. It happened in Mississippi, when the mayor of Greenville discriminated against religious rights.

It’s also possible that a state or local official will run afoul or the Commerce Clause. However, Barr told Hewitt that he has not yet seen any state infringement on national commerce that could trigger DOJ involvement.

Pressed on the possibility of DOJ litigation in federal court against state restrictions, Barr had this to say:

Well, if people bring those lawsuits, we’ll take a look at it at that time. And if we think it’s, you know, justified, we would take a position. That’s what we’re doing now. We, you know, we’re looking carefully at a number of these rules that are being put into place. And if we think one goes too far, we initially try to jawbone the governors into rolling them back or adjusting them. And if they’re not and people bring lawsuits, we file statement of interest and side with the plaintiffs.

In fact, the Justice Department did this when the mayor of Greenville, Mississippi deployed the police in a way that discriminated against religious rights. The mayor backed down.

Barr’s response to Hewitt describes exactly what the Justice Department should be doing. Ramesh Ponnuru asks, “What’s the attorney general supposed to say? ‘We’ll ignore those lawsuits and we won’t try to enforce constitutional rights’?” Of course not.

Ponnuru also observes that Barr’s statements were “elicited” by Hewitt, “more than they were volunteered.” Thus, they do not “bespeak any great eagerness to interfere in state policymaking.” Nor does anything Barr has done show such eagerness.

The newly-minted federalists on the left should relax. Unfortunately, they never do.

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