Barr: We may join lawsuits against governors over their lockdown orders

This is terrible politics but in keeping with Trump’s strategy of playing to his base and only his base, always. Governors are the MAGA villains of the month and the point of Trump-style politics is to attack the villain, so that’s what he’s going to do whether or not it’s good for him long-term.


Barr’s already being criticized for this on Twitter on grounds that it’s an affront to federalism. But (a) constitutional rights, which is what he’s allegedly concerned with, trump federalism and (b) Barr has always seemed keener on executive power than on federal deference to the states. He also doesn’t make any bones about the fact that he’s a political appointee, not a quasi-independent law enforcement officer. A few weeks ago he was on Fox grumbling about how hydroxychloroquine, the president’s favorite wonder drug, had gotten a bad rap from the lamestream media. That’s not normal AG behavior. If Trump’s going to wage political war against governors, Barr’s obviously going to look for reasons to join in.

By doing so, though, he’s going to create three political problems for Trump, and the president can’t afford any more political problems related to coronavirus. “If the testing does not get sorted out as soon as possible, it will be another nail in an almost closed coffin,” said one Republican “close to the White House” to Politico about the hit Trump’s taken since the crisis began. This would be another nail too.

Blunt means to deal with the pandemic, such as stay-at-home orders and directives shutting down businesses, are justified up to a point, Barr said in an interview Tuesday on “The Hugh Hewitt Show.” Eventually, though, states should move to more targeted measures, Barr said. He cited the approach laid out by President Donald Trump.

“We have to give businesses more freedom to operate in a way that’s reasonably safe,” Barr said. “To the extent that governors don’t and impinge on either civil rights or on the national commerce — our common market that we have here — then we’ll have to address that.”…

“We’re looking carefully at a number of these rules that are being put into place,” Barr said. “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.”

In Tuesday’s radio interview, Barr said “these are very, very burdensome impingements on liberty. And we adopted them, we have to remember, for the limited purpose of slowing down the spread, that is bending the curve. We didn’t adopt them as the comprehensive way of dealing with this disease.”


First problem: By joining suits filed by individual citizens against their governors, Barr’s going to make the political narrative less favorable to the plaintiff. If it’s John Doe vs. Gretchen Whitmer, it’s the little guy fighting back against a heavy-handed state that’s gone too far in its zeal to enforce social distancing. If it’s Bill Barr vs. Gretchen Whitmer, it’s the Trump administration playing partisan politics ahead of the election to try to galvanize voters in a swing state. It goes back to what I said yesterday in the post about the optics of anti-lockdown protests. The message protesters should want to convey is one of nonpartisan economic necessity: They’re demonstrating because they need to earn a living and the state is blocking them. The message protesters actually are conveying, per all the tea-party trappings at the rallies, is one of right-wing culture war. Barr’s lawsuits will have the same effect. They’ll be seen as culture war, with all the polarization that entails.

Second problem: Suing and winning would put Trump on the hook for any bad consequences that result, like a second-wave outbreak triggered by reopening too early. The *whole point* of him deciding to defer to governors on when to reopen (notwithstanding him periodically screaming about “LIBERATION” from the sidelines) is that he wants them to take the blame for any second wave. He and his public health team have issued guidelines for responsible reopening; he’s told the governors personally that it’s their call when to act. Now, if they reopen — even with his full rhetorical support — and it backfires, he can shrug and say, “They did it, not me.” But that changes if Barr sues and wins, forcing some of the restrictions to be lifted. Then Democrats can push any adverse consequences back onto Trump’s administration. If the White House strategy was to hand this hot potato to the states and then get out of the way, why the hell would they have the DOJ race in to try to snatch it back?


Third problem: In poll after poll, a majority of the public rates their governor’s response to the crisis highly and supports continued social distancing. The latest is from HuffPost and YouGov:

In four surveys over the past month, the share of Americans staying home has remained between 86% and 89%, and the share supporting states’ decisions to issue stay-at-home orders has stayed between 77% and 81%

Just 15% said there are too many coronavirus-related restrictions in place where they live, with 53% saying restrictions are at the right level, and 23% that there are not enough restrictions.

A 78% majority said state governments that have told residents to stay at home unless they have an essential reason for going out are making the right decision by issuing such orders, with just 9% saying those states are making the wrong decision. Americans said, 60% to 24%, that they’re more concerned that states will lift the restrictions too quickly than that they will not lift the restrictions quickly enough…

In the latest HuffPost/YouGov poll, 87% of Democrats and 77% of Republicans said that state stay-at-home orders remain the right decision; 91% of Democrats and 85% of Republicans said they’re personally making an effort to remain at home.

Those numbers are phenomenally high, especially given the mind-boggling economic sacrifices that are being made to try to slow the contagion. This isn’t remotely a 50/50 issue — yet:


A different YouGov poll asked people when a state should reopen and found majorities across all three parties, including 51 percent of Republicans, say that it should happen when public-health officials are able to perform the testing and contact tracing needed to contain new outbreaks. Yet another poll, from ABC/WaPo, found 72 percent rate their governor’s response to the crisis excellent or good versus 44 percent who say the same of Trump. At least two surveys have found the share of people who say Trump has given trustworthy and accurate information about the crisis to be below his job approval, which means even some Republicans who support him find him hard to believe.

All of that is what Barr would be up against if he joined any lawsuits against the states. The public wants to go slow here despite the economic pain and it trusts its state leaders to do the right thing more than it trusts the president. Yet here comes the DOJ to try to disrupt that and force a premature reopening because the president and some not particularly large share of his base thinks there’s too much electoral peril to him in keeping the economy shuttered for any longer. Any negative consequences that flow from a forced reopening spearheaded by Barr will be hung around Trump’s neck by his opponents all the way to November.


And the punchline is that the DOJ’s participation is unnecessary. As I say, individual people are going to file suit on their own. They don’t need Barr joining their effort. And we can’t be more than a month out from even reluctant governors being forced by economic circumstance to start tentatively reopening for business. Andrew Cuomo, who presides over one of the hottest hot spots on Earth, has already begun talking about plans for a phased restart to the New York economy. These states aren’t going to be locked down until November. They’re coming back online soon, irrespective of what the DOJ does. So why would the DOJ do anything, knowing the political price?

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