by Bob Barr
In the song, Things Have Changed, Bob Dylan observed that “people are crazy and times are strange.” There are few compositions that better capture the nature of the world in which we now find ourselves than those lyrics penned by Dylan two decades ago for the movie Wonder Boys.
The strangest thing of all is that times are certain to become even stranger in the days ahead. Glimpses of what is in store for us appeared this past weekend in several places, from Maine to Florida.
Federally enforced geographic quarantines were suggested by President Trump in comments to the White House press corps as he was leaving for Norfolk to be present for the departure of the Hospital Ship USNS Comfort, which was headed to New York City to help doctors and hospitals in that COVID-19 beleaguered city.
While Trump verbally backtracked on the quarantine comments following pushback from Democratic New York Gov. Andrew Cuomo, whose citizens would be on the receiving end of such a draconian measure. The move obviously is something the federal government is considering and likely already has plans drawn up to justify and implement.
As we saw in the immediate aftermath of the terrorist attacks of 9-11, the U.S. Department of Justice is always ready with memoranda to justify whatever “emergency” action a president might take as “commander-in-chief.” It was in those days right after 9-11 that high-level government lawyers drafted memos arguing that whatever the president does as “commander-in-chief” is permissible – even deploying the U.S. armed forces inside our borders for law enforcement purposes without being subject to limitations in the Bill of Rights.
Subsequent rebuke of such extreme and unconstitutional postures as those crafted after 9-11, however, would today serve as but a speed bump for an administration committed to taking “whatever action is necessary” to stop the spread of the “invisible enemy” that has made our current commander-in-chief declare himself a “Wartime President.”
Governors, too, are flexing their “wartime” muscles. Miles-long traffic jams were created over the weekend on the Georgia side of that state’s border with Florida after Republican Florida Gov. Ron DeSantis ordered police checkpoints on major highways entering the Sunshine State in an effort to keep citizens from New York and other coronavirus “hot spots” away or at least properly quarantined. Religious services — once considered constitutionally protected as against government-decreed prohibition — also have fallen under the bludgeon of state and municipal decrees.
Few of these and other government moves that are supposed to meet the threats posed by the COVID-19 pandemic – both real and exaggerated – have yet to be challenged, much less decided by the courts. However, based on prior court decisions rendered in the aftermath of government overreach responding to other “emergencies” in the years since 9-11, the outlook for successful Constitution-based challenges in the current pandemic crisis is not good. With distressingly few exceptions, federal judges (including those on the nation’s High Court) have in recent decades shown little appetite for reining in presidents who declare their actions necessary in order to protect “national security interests.”
Making it even harder to challenge federal government overreaches are myriad broadly worded federal statutes already on the books – from the National Emergencies Act and amendments to the Insurrection and Posse Comitatus Acts, to other powers hidden within numerous National Defense Authorization Acts. A creative president or attorney general would have little difficulty finding language already in the law books to justify whatever “emergency” steps they wish to take.
Of concern also, as seen this past weekend in at least one community in Maine, are local citizens taking steps to prevent individuals believed to be coming from New York City (or other viral “hot spots”) from entering their neighborhood for fear of spreading the COVID-19 virus. It may be only a matter of days before such vigilante moves result in more than an inconvenience for American citizens simply exercising what used to be considered a constitutional right to travel.
Indeed, as Dylan observed, “things have changed.”
Bob Barr represented Georgia’s 7th District in the U.S. House of Representatives from 1995 to 2003. He now serves as President of the Law Enforcement Education Foundation based in Atlanta, Georgia.