I am seeing a lot of Twitter outrage and criticism descend on Attorney General Bill Barr for what strikes me as fairly anodyne comments he made on Hugh Hewitt’s radio show. The first set of relevant remarks came when Hewitt asked whether federal and state authority over the coronavirus response had collided:
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.
Hewitt then asked if Barr had seen any state infringe on national commerce in a way that could trigger DoJ action. “Not yet.”
Later in the interview, Hewitt presses Barr on the possibility of litigation in federal court against state restrictions. Barr tries to avoid answering what he calls “a general hypothetical bereft of any facts,” but eventually offers this comment:
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.
These are all extremely general statements. In themselves they are not objectionable. What’s the attorney general supposed to say? “We’ll ignore those lawsuits and we won’t try to enforce constitutional rights”? They’re also statements that were elicited more than they were volunteered. They do not bespeak any great eagerness to interfere in state policymaking.
I have no doubt that the administration will give people something worth criticizing before the day is over. (Maybe the president will re-assert his “total authority” over lockdowns.) This isn’t it.
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