Legal professional Normal Invoice Barr obtained a number of criticism for feedback he made in regards to the risk that the Division of Justice would go to federal court docket to problem some state lockdown insurance policies. I defended him from that criticism (as did Andy).
Now Philip Rotner is making some new criticisms of Barr over these points. They don’t change my view.
Rotner argues that Barr’s concern about states’ restrictions on non secular providers is selective. “Non secular liberty just isn’t the one proper protected by the Structure. Various states have used coronavirus restrictions to curtail abortion access, arguing that it’s non-essential. Is Barr going to problem these ordinances, too?”
This grievance is unpersuasive for 3 causes. First, the Structure really protects non secular train — it’s proper there within the textual content of the First Modification — whereas the federal courts are simply pretending that it protects abortion. The Legal professional Normal just isn’t, for my part, below any obligation to conduct litigation primarily based on a view of the Structure that he doesn’t maintain and that’s incorrect. It’s doable, in fact, to take a opposite view, however one mustn’t fake that it’s clearly true.
Second, even assuming that abortion is on par with non secular liberty as a constitutional proper, there’s a distinction between difficult a regulation singling out non secular providers and difficult a regulation that’s merely being utilized to abortion clinics.
Third, this isn’t an argument towards Barr’s view that the Division of Justice could should go to federal court docket if states violate the Structure — it’s an argument that he must be extra keen to try this. It might be a foul factor if Alabama began quartering troops in folks’s houses with out their consent and Barr let it slide. That unhealthy factor wouldn’t justify permitting cities in Mississippi to abridge non secular freedom, too.
Subsequent, Rotner objects to Barr’s having stated that states might set off intervention by way of “undue interference with the nationwide economic system.” Rotner calls that phrasing
each expansive and imprecise. For starters, how are the attorneys on the Division of Justice presupposed to fairly calculate the nationwide financial penalties of state and native ordinance? The reply, in fact, is that they can’t. The one function of such a risk is to intimidate lawmakers into not adopting measures that may frustrate or delay Trump’s “open America once more” coverage.
In the memo in question, Barr says that the Structure forbids state interference with the nationwide economic system “in sure circumstances.” That may be a cheap inference from the constitutional textual content, and it traces up with scores of a long time of Supreme Courtroom precedent. Whether or not a state is operating afoul of the dormant commerce clause doesn’t activate a calculation of the nationwide financial penalties of state and native ordinances. (Considerably off level, to say that Trump’s want to “open America once more” quantities to a “coverage” is an overstatement.)
Lastly, Rotner complains that Barr provided an interviewer his opinions about how lockdowns should proceed. He writes as if Barr meant these opinions as a information to what his litigation technique could be, regardless that Barr by no means stated any such factor. Among the many opinions to which Rotner objects is that this one: “I feel the president’s steering has been, as I say, very good and really commonsensical, and I feel a number of the governors are following that.”
Barr’s opinion isn’t mine, and I feel Cupboard secretaries should be embarrassed to say such issues. I can see why Rotner finds the remark objectionable. I don’t suppose it has a lot to do with the Legal professional Normal’s duties below the Structure.