Barr Says DOJ May Act Against Governors With Strict Virus Limits https://t.co/YO2TaTqw3Q— Maggie Haberman (@maggieNYT) April 21, 2020
Let's see:
"...And if they’re not and people bring lawsuits, we file statement of interest and side with the plaintiffs.” 2/2— Maggie Haberman (@maggieNYT) April 21, 2020
Federal and state courts are closed due to the coronavirus. Dockets are stalled, waiting to reopen. And Bill Barr thinks he's going to go into court and join lawsuits against state governors before the courts reopen and these cases become moot? The DOJ won't really add anything to those cases, and certainly won't make them leap to the top of the dockets and get heard expeditiously, if at all. I can see courts with already crowded and screwed up dockets deciding these cases are the least important matters they should be using technology and court time to deal with just now.
And if the cases linger long enough to become moot, there is a solution for that: dismissal. The courts can't fix what isn't still a problem. And the police power to protect public health lies solely with the states. Unless Barr is going to argue that the 10th Amendment violates the Constitution, or that some governor somewhere imposed a shut down order that discriminated against some group in that state on the basis of race (the only invidious grounds the courts might consider in this matter), and that it is ongoing AFTER all the orders have been lifted and the courts have re-opened. A vague statement that some order "infringes on liberties" is not a legal argument, it's a political one. It's a meaningless statement in court, and Barr knows it (or one hopes he still does).
Barr isn't even talking about bringing suits, because he knows they won't be heard until sometime next year (and he may not be in office then). He's going to join suits that are sitting on crowded court dockets unlikely to be heard until the crisis has passed. Barr doesn't care; he's speaking for Hugh Hewitt's radio audience. He's doing what his boss does in tweets: throwing out red meat to the know-nothings. And if a court does issue an order against a governor who is acting to protect his residents?
Well, in Georgia, where private individuals have said they will ignore the Governor's order to return to business as usual. There's nothing the governor of Georgia can do about that, except maybe sue those businesses (which would not be a smart political move). Similarly, the states could well tell Barr to go to court, or even tell the court they value their residents more than they do a bad court order. The people in Georgia are just telling the government it can't control them in this matter, and they are right. The governors who might choose to defend their residents (don't laugh, governors did it in the '60's, and had to stand by and watch U.S. Marshals escort young children to public schools. What U.S. Marshall is going to force businesses to open and conduct business?) would be saying the same thing. And that would be a constitutional crisis, provoked by the AG of the United States.
Political geniuses, these guys.
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