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Barr Threatens Legal Action Against States’ Stay-at-Home Orders

In a radio interview, Barr said the Justice Department would side with plaintiffs against states’ stay-at-home orders.

Attorney General William Barr speaks in Detroit, Michigan, on December 18, 2019.

During an interview on Tuesday with conservative radio host Hugh Hewitt, Attorney General William Barr said that he had several qualms with regard to stay-at-home orders issued by state governors across the country, and suggested he may seek legal action against those he believed went beyond constitutional bounds.

Barr tried to explain to Hewitt how the Justice Department might go about compelling states to lessen or remove their orders, which were initially put in place to lessen the spread of COVID-19.

“If we think one goes too far, we initially try to jawbone the governors into rolling them back or adjusting them,” Barr said. “If they’re not and people bring lawsuits, we file statement of interest and side with the plaintiffs.”

“These are unprecedented burdens on civil liberties right now. You know, the idea that you have to stay in your house is disturbingly close to house arrest,” Barr explained, adding the caveat that in some places, stay-at-home orders “might still be justified.”

Barr’s comments, however, do not appear to match reality. House arrest is generally viewed as confinement in one’s home as an alternative to a prison sentence. There are strict guidelines on how one can behave, and limits on where a person can travel, if at all.

Conversely, while 90 percent of the population is currently under some form of a stay-at-home order, such decrees are not as hardline as most house arrest arrangements are. People are generally not limited by these orders from going outside or walking in parks, for example. Some activities are limited, but they are also, in many circumstances, not heavily enforced in a lot of areas.

Still, Barr seemed to tout the line pushed by President Donald Trump, that stay-at-home orders should begin to be lifted, in his view. “We are now seeing that these are bending the curve, and we have to come up with more targeted approaches,” he suggested.

Barr added that he thought Trump’s plan for “reopening” state economies across the U.S. was “superb and very commonsensical,” in spite of the fact that it lacks the means to amp up testing to measure success rates.

Health experts disagree, with many arguing that opening things up now would be a mistake and risks creating a “second wave” of COVID-19 infections.

If Barr does indeed intend to join in lawsuits against states from residents, he may be limited in doing so due to precedent set by the Supreme Court. In a decision about mandatory smallpox vaccinations made in the 1905 case Jacobson v. Massachusetts, the Court held that, “in every well-ordered society … the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”

In other words, a person has certain rights, but where dangerous circumstances arise, those rights can be suspended in a just manner. Stay-at-home orders may fit those criteria.

Most across the country disagree with calls to end the stay-at-home orders. According to a recently published Reuters/Ipsos poll, 72 percent of Americans say stay-at-home orders should remain in place “until the doctors and public health officials say it is safe.”

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