Barr tells prosecutors to watch for pandemic restrictions that violate Constitution

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Attorney General William Barr on Monday directed federal prosecutors to “be on the lookout” for public health measures put in place amid the coronavirus pandemic that might be running afoul of constitutional rights.

In a two-page memorandum to the 93 U.S. attorneys, Barr cautioned that some state and local directives could be infringing on protected religious, speech and economic rights.

“If a state or local ordinance crosses the line from an appropriate exercise of authority to stop the spread of COVID-19 into an overbearing infringement of constitutional and statutory protections, the Department of Justice may have an obligation to address that overreach in federal court,” Barr wrote.

In his memo, Barr said he was directing two Department of Justice (DOJ) prosecutors to monitor the measures taken by state and local governments and “if necessary, take action to correct them.”

“Many policies that would be unthinkable in regular times have become commonplace in recent weeks, and we do not want to unduly interfere with the important efforts of state and local officials to protect the public,” Barr wrote. “But the Constitution is not suspended in times of crisis.”

“We must therefore be vigilant to ensure its protections are preserved, at the same time that the public is protected,” he added.

The Supreme Court has long held that constitutional rights can be lawfully restricted when emergency public health measures are in place, though the precise scope of government public health power is not clearly defined.

Legal experts caution that governments can be prone to overreach amid exigent circumstances.

“In times of emergency — including public health emergency — the temptation to violate individual rights is at its greatest, and the courts have often been called on to defend the rights of the vulnerable,” Harvard Law professor Glenn Cohen previously told The Hill.

Earlier this month, a federal judge in Kansas blocked an order from the state’s Democratic Gov. Laura Kelly that restricted in-person religious assemblies to no more than 10 people.

Barr has previously warned state and local governments against enacting restrictions that singled out religious gatherings and the Justice Department filed a memo in support of a Mississippi church that sought to offer drive-in church services.

“Even in times of emergency, when reasonable and temporary restrictions are placed on rights, the First Amendment and federal statutory law prohibit discrimination against religious institutions and religious believers,” Barr said in an April 14 statement.

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