The DOJ’s mission statement is “to provide federal leadership in preventing and controlling crime… and to ensure fair and impartial administration of justice for all Americans.” The line between these two goals is fuzzy, and the US prides itself on both the independence of its local courts and its ability to punish criminals. While the public is solely focused on the rising body count of Covid-19, the DOJ has quietly taken it into its own hands to answer a fundamental question underlying today’s government: in a crisis, who has the power to control the US response?
In documents acquired by Politico, the DOJ has allegedly asked Congress to give the US Attorney General rights to pause district court proceedings “whenever the district is fully or partially closed by virtue of any natural disaster, civil disobedience, or other emergency situation.” By asking a district court to close with no detailed stipulation as to time, the DOJ could be effectively responsible for indefinite detention of defendants. According to the late Supreme Court Justice Antonin Scalia, “freedom from indefinite imprisonment at the will of the Executive” represents the “very core of liberty.”
The possibly unconstitutional manner of such a measure goes to show the lengths the DOJ will go to control our response to Coronavirus. The controversial nature of state and local relations, exacerbated by the virus, would indicate the value of wrangling local and state responses under federal coronavirus guidelines. And, it seems the DOJ would like to weigh the balance towards the feds. In addition, advocates would note that the request was not necessarily unconstitutional. The constitution (Article I, Section 9, Clause 2), states: “The Privileges of the Writ of Habeas Corpus shall not be suspended unless when in Cases of Rebellion of Invasion the public Safety may require it.” If you consider the virus a public danger, as the White House does, then it would be legal to suspend individuals’ right to be free of indefinite detention.
Our government has also ratified the UN Basic Principles on the Independence of the Judiciary, which states that “[t]he independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country.” It goes on to state that “[t]he judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.” Under some interpretations of this statute, the right to pause court proceedings interferes with judicial independence. However, the judiciary is supposed to have jurisdiction over issues of a judicial nature, not necessarily the functioning or closing of the broader legal system. The DOJ organizing a national crisis response in the courts could help America’s legal system emerge from the pandemic with clear leadership and organization.
The attempt to control the local response to the pandemic was recently taken further, when the DOJ promised to support legal actions against states that chose not to close (or reopen) in line with federal guidelines. Attorney General Barr claimed during an interview that the quarantine was “a burden on civil liberties” and compared it to “house arrest.” He went on to say, in regards to governors who “impinge on civil rights or on the national commerce,” that “ we’ll have to address that.” Mr. Barr also claimed that some prevention efforts were justified and some were not. By claiming to know the difference, Mr. Barr has decided that his assessment of what constitutes a crisis is better than the governors of individual states and that he should control the national pandemic response. By doing so, he disregards the fact that in our system, localities are by nature meant to be more informed and connected to their people than the federal government.
The American people are looking for leadership during this time of crisis. And, in many cases, Trump’s vision for America does not line up with that of local governance. Rahm Emanuel, former Chicago Mayor and Chief of Staff for President Obama, once said, “Never allow a good crisis go to waste.” It seems the DOJ agrees. The Department is using current presidential backing and unclear American leadership to expand their power over US crisis response. Does the DOJ truly have the interest of America in mind, or are they exploiting a crisis for unconstitutional power?