While Donald Trump now grudgingly acknowledges that the coronavirus won’t magically go away, he and his Department of Justice have spent the past months undermining the ability of states to protect the health of their citizens—and Attorney General William Barr has joined the president in undermining the ability of states and cities to maintain public order.
When Barr finally makes his long delayed appearance before Congress on Tuesday, his campaign to undermine state and local governments should take center stage.
Since March, Trump has invoked principles of federalism in a transparent effort to avoid responsibility for combating the outbreak, and thrust that burden on states that lacked the resources or ability to combat an international health crisis. Although Trump’s dumping of responsibility in the laps of 50 governors was a transparent abdication of responsibility, it also had apparent grounding in a conservative ideology of states’ rights that has long dominated the GOP. Barr, however, has discarded that principle entirely as he used a series of legal actions to try and force state and local governments to bend to Trump’s will.
The Constitution lodges the police power, including the primary authority to provide for public welfare, safety and health, in the states. Since the New Deal, conservatives have objected to the so-called federal “administrative state,” which they believe has improperly seized power from the states, particularly in areas involving law enforcement, public welfare and health regulation—largely relying on the federal constitutional authority to regulate interstate commerce.
This states’ rights ideology has long been ineluctably bound up with the Southern resistance to civil rights, a cause the GOP adopted to gain the allegiance of former Dixiecrats, beginning with the presidential candidacy of Barry Goldwater and culminating in the victory of Ronald Reagan.
Chief Justice William Rehnquist, a former Goldwater supporter, wrote a memo in favor of upholding the “separate but equal” doctrine during the Supreme Court’s deliberations on Brown v. Board of Education when he was a young law clerk. In 1995, he authored the court’s decision in U.S. v. Lopez, which nullified a statute criminalizing the possession of firearms in the vicinity of schools. As Rehnquist explained it, such misconduct had an insufficient nexus with interstate commerce, and thus regulating the activity was offensive to federalism: “Under the theories that the Government presents… it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign.”
The court later went on to nullify a portion of the Violence Against Women Act, likewise on federalism grounds. Furthermore, while the court narrowly upheld the Affordable Care Act’s health insurance mandate in 2012, Chief Justice John Roberts agreed with the court’s other conservatives that the provision could not be upheld under the Commerce Clause, and instead was valid only as an exercise of Congress’ taxing power.
Accordingly, when, earlier this year, Trump appealed to principles of federalism in attempting to place primary authority for addressing the coronavirus catastrophe on the shoulders of the states, he initially appeared to be implementing the longstanding conservative principle that states should have the responsibility, and autonomy, to regulate public health as part of the police power reserved to them by the Constitution.
But as it turned out, Trump’s actual intention was to offload responsibility on the states, even as he, along with Barr and his Justice Department, assiduously sought to undermine the very state power and authority that Trump claimed to be vindicating. The result was a massive compounding of a public health emergency, and with it the resulting death toll.
Trump set the tone for his scheme to undermine state authority as early as April, as he began openly encouraging armed militias to besiege state capitals, particularly of those states with Democratic governors, seeking to intimidate states to “liberate” their citizens from the very public health measures that Trump’s coronavirus task force was then recommending. In a toxic stew of conspiracism, Trump even openly fed claims that lifesaving public health measures were actually part and parcel of a secret scheme to seize weapons, declaring to gun-toting supporters who were swarming upon the state capital in Richmond, Virginia, that they should: “LIBERATE VIRGINIA, and save your great 2nd Amendment. It is under siege!”
But the Trump administration went beyond the president’s incendiary rhetoric, and took to the courts in a concerted effort to undermine the ability of states to exercise their constitutionally assigned authority to protect the health of their citizens. Also in April, Barr issued a memorandum stating that the DOJ was taking it upon itself to “monitor state and local [public health] policies”, including for potential violations of religious freedom and “undue interference with the national economy.” That same month, the DOJ began to intervene in lawsuits and to send threatening letters to state and local governments, as part of what proved to be a concerted campaign aimed at intimidating states into loosening their coronavirus-related public health rules.
At first, the DOJ focused its litigation intimidation campaign on matters of religion, arguing that it was unconstitutional for states to attempt to protect their citizens from the now well established danger of gathering together for hours on end for worship services in the midst of a raging pandemic. The principles of federalism that Trump had ostensibly invoked went out the window, as Barr’s DOJ argued that the considered judgments of state public health officials should be wholly disregarded.
Barr’s legal argument, however, ultimately hit a dead end at the Supreme Court in May and again this month, when Roberts joined with the court’s four liberal justices in refusing to nullify state health regulations, invoking the very federalism principles Trump had (disingenuously) cited in denying responsibility for the pandemic: “Our Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.’”
Barr, however, was not concerned with the obvious contradiction between invoking federalism to foist responsibility for the pandemic upon the states and attempting to coerce the states into adopting Trump’s preferred reckless public health policies. To the contrary, the DOJ’s “civil rights” division expanded its litigation offensive against state public health regimes even more broadly, including by filing court papers in Illinois supporting a state legislator who insisted on going maskless and sending correspondence to officials in California, suggesting that their stay-at-home orders (issued in conformity with the federal government’s own guidelines) somehow offended the Constitution.
Most “Democrat states” did not give into the Trump/Barr intimidation scheme, and refused to abandon the considered recommendations of public health experts. But Trump’s intimidation campaign, echoed by his (sometimes gun-toting) supporters did have its intended effect on many Republican governors (whose leaders live in political fear of Trump’s influence), and chose to disregard scientific and medical experts and give in to Trump’s demands. The result was the newly raging pandemic that the nation now faces in much of the South and West.
Trump’s effort to undermine states’ authority had succeeded, at the great expense of the citizenry.
Despite the disaster his meddling in state prerogatives has wrought to date, Trump is not done. Indeed, even as the carnage grows in the states that prematurely “opened up” at his behest, Trump is still complaining that “a lot of the governors should be opening up states that they’re not opening.” Most recently, Trump’s been focused on coercing local school districts to open their schools, going so far as to pressure the CDC to discard its already lax initial school safety guidelines in service of Trump’s goal. Furthermore, Trump is threatening localities with the loss of federal funding for disabled students if they fail to cave to his reckless demands to open the schools, even if it leads to massive numbers of infections. Long forgotten is Rehnquist’s declaration in Lopez that education is a realm “where states historically have been sovereign.”
But Trump’s offensive against state authority has taken its most overt, and perhaps most dangerous, form in his and Barr’s current effort to undermine local policing policies. The public centerpiece of this latest attack on state autonomy is, of course, the ongoing debacle in Portland in which the DHS sent legions of often anonymous forces, purportedly to protect federal buildings.
These obviously untrained forces have since unleashed large volumes of tear gas, pepper spray and “less lethal” munitions on crowds, leaving one protester (armed only with a boom-box) with a broken face and others with less, but still serious, injuries (including journalists, leading a to a recent court order protecting them). The result is that a protest that was on the verge of petering out has morphed into daily pitched battles that show no sign of ending soon.
Undeterred, and as is his wont, Barr has again stepped into the breach, touting a recent announcement that the DOJ will be sending FBI and other law enforcement officers to numerous cities (all or most, it seems, with Democratic leaders) to combat what Trump claims is an out-of-control epidemic of violent urban crime. All but forgotten is Rehnquist’s admonition that “criminal law enforcement” is another area of traditional state sovereignty.
Furthermore, as a practical matter, the only effective federal efforts to aid in combating street crime have been pursued in close coordination with local law enforcement officials, such as a program that then federal prosecutor Jim Comey implemented in Richmond during the 1990s to charge serious offenders identified by the city’s police force with federal gun crimes.
Barr has paid lip service to pursuing such cooperation. But he touted his new program during a press event in which Trump railed against (invariably Democratic) local government officials who he claimed had “put the interests of criminals above the rights of law-abiding citizens” and declared his intention to “get involved” in their cities, whether they want it or not—pointing to his purported success in Portland, in which federal forces were not only sent without coordination with the municipal government but indeed recently tear-gassed the mayor.
The idea that a relatively small number of FBI and other federal agents can parachute into a city and immediately “clean up” violent crime without close coordination with local government and law enforcement leaders is fanciful. Indeed, Barr resorted to the wholly fictional claim that federal law enforcement officers had recently arrested 200 alleged violent criminals in Kansas City as part of the DOJ’s nascent program. As it turned out, that number included all arrests since the end of 2019. Barr’s account was not only fictional, but also dangerous, particularly in the midst of both a raging pandemic (which Trump, along with the DOJ and much of the rest of the federal government has exacerbated) and ongoing protests regarding police violence against African-Americans, which Trump has inflamed.
Under such circumstances, announcing that the federal government plans to ”surge” law enforcement personnel to cities whose leaders have not asked for, or in some cases have not even agreed to accept, them is a recipe for yet another Trump manufactured disaster.
It is possible, indeed maybe likely, that Barr’s so-called Project Legend, will peter away like so many of Trump’s policy initiatives, and prove to be far more about press conferences than reality. But the damage may already be done. In the wake of Barr’s and Trump’s incendiary attacks on both protesters and city leaders, and the conflagration in Portland, protests that had largely abated in many cities are heating up once again. This time, it appears that the level of violence may be higher, unsurprising given Trump’s effort to heighten tensions between protesters (whom a recent memo revealed a DHS official has chosen to label “anarchist” and “ANTIFA,” involved in what he described as an “ideological” battle)) and law enforcement officers.
Where this will all end is uncertain. But when Barr makes his long-delayed appearance before the House, one topic should be at the forefront of the questioning. Having foisted responsibility for addressing multiple national emergencies on the states, when will the federal government stop trying to coerce and intimidate local and state leaders to adopt Trump’s catastrophically misguided policy prescriptions?