Keep in mind that, as the Court observed in Jacobson, “the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.” What the government cannot do is single out individuals for reasons that have nothing to do with protecting public health—like religious beliefs, race, gender, or national origin. If local law enforcement enforces unreasonable orders in an unfair manner—even as part of an effort to protect public health during a pandemic—then the federal government and the courts are right to step in.
And the street goes both ways. In the absence of blatantly discriminatory or unreasonable orders being unfairly enforced, the federal government might have an even greater interest in preserving room to maneuver so that, in the future, governments will be able to strike the balance between individual rights and public safety.
Which is why DOJ’s decision to deride Greenville’s coronavirus enforcement efforts as amounting to intentional religious discrimination—when the underlying facts have not been established and the ordinance itself is no longer in operation—is concerning.
It’s hard not to wonder whether this was really about Attorney General Barr’s fire-and-brimstone approach to religion and American democracy.