The Department of Justice has responded to home orders in Illinois and California – and has warned officials in both states that the federal government believes they may exceed their legal authority with their current means of mitigating the spread of the coronavirus pandemic . .
The Justice Department signals – a declaration of interest in support of a lawsuit against Illinois Governor JB Pritzker, and letters to both Los Angeles officials and California Governor – are part of an initiative launched last month announced by Attorney General William Barr, intended to monitor and take legal action against state or local regulations that represent an “alleged breach of constitutional and legal protection”.
The warnings come when the Trump administration aggressively promotes the reopening of sites such as churches and nonessential businesses amid a crashing economy, and because the government is looking for ways to accelerate the return to pre-coronavirus normality.
Friday lawyers from the Ministry of Justice has made an interest declaration in support of a lawsuit against Pritzker by the state of Rep. Darren Bailey from Illinois. Bailey, a Republican, claims that Pritzker illegally extended the state’s state residence restrictions to a 30-day period during which the governor was allowed to exercise emergency powers.
“Well-intentioned, the executive orders seem to extend well beyond the scope of the 30-day emergency service rendered to the governor under Illinois law,” said Steven Weinhoeft, the US attorney for the Southern District of Illinois, in a statement explanation of the federal government’s declaration of interest. “Even in times of crisis, executive actions taken in the name of public security must be lawful.”
Weinhoeft continued, “And while Illinois residents must be physically protected from the effects of this public health crisis, including by complying with [Centers for Disease Control and Prevention] their constitutionally guaranteed rights and freedoms should also be protected. ”
Clay County Circuit Judge Michael McHaney reigned in favor of Bailey in late April, but Pritzker has since transferred the lawsuit to federal court. The lawsuit only applies to Bailey himself, but would allow individuals and groups to challenge limitations themselves.
And in another development on Friday, Eric Dreiband, assistant attorney general in the Department of Civil Rights at the Department of Justice, wrote a letter to Los Angeles officials express concern about “a arbitrary and harsh approach to continuing home requirements”.
The letter came in response statements from city officials announced their commitment to long-term traffic restrictions last week. Los Angeles Mayor Eric Garcetti said last week that his city “will never be completely open until we have a cure” in an interview with ABC’s Good morning America. And Barbara Ferrer, Los Angeles County public health director, said there will continue to be some form of quarantine restrictions for the county “for the next three months.” She later clarified by saying that “while” Safer Home “orders will remain in effect in the coming months, restrictions will gradually ease.”
Reports of your recent public statements show that you have proposed the possibility of a long-term termination of residents of the City and District of Los Angeles, regardless of the legal justification for such restrictions. Such an approach can be both arbitrary and illegal, “Dreiband said in his letter.
Responding to the Justice Department letter at a news conference on Friday, Garcetti said, “We are not guided by politics, we are guided by science. We are guided by cooperation. … The numbers will always lead us forward – there is nothing else. There are no games, nothing else is going on. “
Tuesday, Dreiband sent one similar letter to California Governor Gavin Newsom, arguing that the state should allow churches to reopen earlier than it currently plans, accusing Newsom of “markedly unequal treatment of faith communities” and of violating the civil rights of worshipers.
California plans to re-open places of worship once the criteria to which the state must move are met phase three of the reopening plan, allowing “higher risk workplaces” to resume normal activities.
Although a number of “super spreader events” are related to religious gatherings in South Korea, France and the United States, the DOJ stated in its letter that “California has not shown why interactions in offices and studios of the entertainment industry, and personal operations to facilitate non-essential e-commerce, are listed as allowed … while social distance gatherings for religious worship purposes are prohibited.
The Newsom office responded to comments by saying that only she had received the letter, and the governor promised Monday worship would be in session within “weeks, if all is right.”
Neither letter contained any threat of legal action, but both – as well as the department’s involvement in the Illinois case – are clear signs of the Department of Justice’s willingness to assist the President in his attempt to reopen the country.
The Trump administration wants to switch as soon as possible
President Trump has advocated weeks of rapid reopening, encouraging anti-lockdown protesters with a series of tweets stating that someone should “free” their states, and has regularly called for companies to reopen on Twitter.
REOPEN OUR COUNTRY!
– Donald J. Trump (@realDonaldTrump) May 18, 2020
But there are hard limits to what the federal government can do in a federalist system that allows states to oversee many of their own pandemic responses, as Vox’s Ian Millhiser explained Friday, after Trump announced he would order churches to reopen – and ‘replace the governors’ ”If they resist:
Congress could, in theory, ignore some of the decisions of state governors. The constitution empowers Congress to “regulate trade with foreign countries and between different states, “A provision Congress gives broad authority regulate the national economy and remove barriers to interstate trade. So if Congress disagreed with the closing of companies by a state order, it could likely issue federal law that excludes that state order.
But even assuming that churches have a substantial impact on interstate commerce for Congress to reopen, Trump is not a Congress. Trump may invoke existing laws that give the federal executive some power to help manage a public health crisis, but those statutes largely allow the federal government to monitor ongoing state efforts to disease control, or attempting to quarantine or enter state lines.
This leaves the Trump administration with limited options to advance its reopening agenda, especially in states not controlled by allies of the President. But the DOJ’s actions suggest that it is increasingly willing to help the President find ways to get around this limitation.