Attorney General William Barr his issued a tantamount declaration of war against the states, but local attorneys general are pushing back against the intrusion on state sovereignty.
Barr continues to embrace Trump administration policies, despite a long-standing mandate for his office to operate independently of the White House.
In his most recent action, he ordered U.S. prosecutors around the country to review state-level pandemic orders to ensure they don’t violate the constitution, ostensibly religious and economic rights.
But the move was widely interpreted as tacit support for anti-lockdown protesters, some of whom are carrying assault rifles. They have stormed several state capitals over the past few weeks.
Trump sided with armed protesters in Michigan today (May 1). They are trying to force Democratic Gov. Gretchen Whitmer to lift emergency restrictions. He urged her to “negotiate” with the protesters.
“The Governor of Michigan should give a little, and put out the fire,” Trump Tweeted. “These are very good people, but they are angry. They want their lives back again, safely! See them, talk to them, make a deal.”
Some Michigan protesters waved Trump flags or signs, and one woman sported a “Liberate Michigan” mask, echoing Trump tweets.
Whitmer extended the order, which was due to expire at the end of Thursday. Michigan is the site of several COVID-19 hotspots, according to CNN.
Barr has suggested in a memo the Department of Justice (DOG) might back church groups and those seeking a swifter economic reopening.
“If a state or local ordinance crosses the line from an appropriate exercise of authority to stop the spread of COVID-19 into an overbearing infringement of constitutional and statutory protections, the Department of Justice may have an obligation to address that overreach in federal court,” the memo stated.
Trump has been advocating reopening the economy against the advice of his medical professionals in hopes of bolstering his re-election chances. COVID-19 deaths have soared past 60,000 Americans and more than one million infections.
A spike in unemployment to Great Depression levels and his bungling of the virus response have angered voters and cause his popularity and election chances to plummet in recent polls.
Yet the DOJ has failed to address state efforts to impose virus-related limits on abortion and voting access.
“It’s extremely likely that the DOJ will play favorites,” Lindsay Wiley, a law professor at American University, told online government and politics site The Hill.
“I think it’s accurate to assume that DOJ will not intervene in a neutral way, but will instead intervene on behalf of plaintiffs asserting rights the administration favors.”
Some states have made clear they are standing their ground and will oppose any DOJ action in court.
New York Attorney General Letitia James, who has battled the administration in court over a number of issues, vowed to do the same if the justice department acts.
“Despite the Trump Administration’s failure to do so, states are able to protect constitutional rights and enact policies to curb the spread of the coronavirus simultaneously,” she said in a statement. “The Tenth Amendment of the U.S. Constitution is clear that ‘the powers not delegated to the’ federal government shall be ‘reserved to the States.’
“Make no mistake: U.S. Attorney General Barr is not the only one prepared to take legal action to guard the Constitution. My office will fight every day to defend it and the rights it affords the great State of New York.”
James also threatened to take the administration to court if Trump goes through with his threat to withhold relief aid for so-called “sanctuary” cities and states.
She said the effort was part of “a sinister political agenda that only aims to punish us all — citizens and non-citizens alike.”
“This is just another attempt to again feed his base and push the same partisan ideology we’ve seen for the last three years,” she said in a separate statement.
“It is my sincerest hope that one day the president will wake up and realize the power of his words; until that day comes we will be ready to take legal action.”
The memo, released Monday (Apr. 27), ordered the nation’s 93 U.S. attorneys to “be on the lookout” for health restrictions that could be running afoul of constitutional rights. He also ordered them, “if necessary, to take action to correct them.”
“We do not want to unduly interfere with the important efforts of state and local officials to protect the public,” Barr wrote. “But the Constitution is not suspended in times of crisis.”
The Supreme Court has long held that constitutional rights can be lawfully restricted to some degree when emergency health orders are in place. But the line demarcating where one begins and the other ends is something of a legal gray area, according to The Hill.
The Trump administration has largely abrogated coordinating a federal role in addressing the virus, leaving it up to states to craft their own strategies.
Many states have issued lockdown orders closing non-essential businesses, requiring individuals to stay in their homes and maintain “social distancing” by limiting gatherings of more than 10 people.
Church groups, in particular, have challenged procedures limiting gatherings.
The Justice Department has been sympathetic to their protests. Earlier this month, it filed a legal brief supporting a Mississippi Baptist church’s challenge of a local health restriction that prevented drive-in services. The City of Greenville relented and the case was withdrawn.
Conservative Christians make up a key part of Trump’s political base.
“Religious liberty is a place where the DOJ in the Trump administration has been bringing more and more affirmative litigation on behalf of church groups and other religious voices,” Glenn Cohen, a professor at Harvard Law School told The Hill.
Some governors, mostly in rural red states, have begun easing restrictions in the face of new hot spots emerging in their jurisdictions.
Protesters, largely organized or encouraged by right-wing political groups, have staged demonstrations against stay-at-home orders.
In a bizarre tweet, Trump encouraged the protesters to “liberate” states led by Democratic governors, even though they are following the recommendations of his own White House COVID-19 task force.