Using Crisis to Undermine Constitutional Rights Is The Worst Kind of Gouging

By Daily Editorials

March 25, 2020 4 min read

Attorney General William Barr, who serves an authoritarian-minded president, is seeking to have defendants detained indefinitely without trial, citing the coronavirus pandemic as justification. In Ohio, meanwhile, a Republican attorney general is using the pandemic to deny women their constitutional right to abortion — decreeing, ludicrously, that it falls under the category of "non-essential" medical procedures and so must be suspended to keep hospital beds free.

Politicians trying to use this crisis to advance long-sought, controversial political agendas that they couldn't win in normal times are every bit as despicable and dangerous as those who price-gouge hand sanitizer or market phony coronavirus cures. These ideological opportunists must be stopped in their tracks.

As Politico reported last week, Barr's Justice Department has quietly asked Congress to let judges detain criminal defendants indefinitely without trial during emergencies like the current pandemic. It would effectively suspend habeas corpus, the core principle of America's justice system that says accused people have the right to appear before a judge and argue for release.

For an idea of just how extreme a move this would be, consider two previous times presidents have suspended habeas corpus: Abraham Lincoln did it during the Civil War and George W. Bush did it after the 9/11 attacks. Both those moves were in conjunction with war efforts. Both were more limited in scope than what Barr reportedly seeks. And yet both were and still are the subject of intense constitutional debate.

The Trump administration has already used this crisis to justify carrying out its standing goal of tighter border restrictions. Whatever mixed motivations might have driven that decision, tighter border measures are difficult to argue against, given medical experts' advice to limit all kinds of movement. But members of both parties have properly opposed the administration's habeas corpus power grab. "OVER MY DEAD BODY," tweeted Sen. Mike Lee, R-Utah.

That sentiment should also hold for stunts like the one by Ohio Attorney General Dave Yost, a Republican who has ordered all abortions in his state halted on the pretense that they are "non-essential" and "elective" medical procedures — basically likening this time-sensitive, constitutionally protected choice to plastic surgery. In case the bad faith here wasn't obvious enough, consider that, just before the current restrictive measures began nationwide, Yost was enthusiastically defending a draconian Ohio anti-abortion-rights law from a court challenge.

Emergencies like the pandemic justify some limited changes in citizens' relationship with government — the Justice Department's request for wider use of remote video technology in criminal court proceedings, for example. But any changes must take into account the constitutional long view and resist the instinctive urge of some politicians to cynically use crises to leverage preexisting political goals. Otherwise, they damage the very democracy they've sworn to protect.

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Photo credit: Syaibatulhamdi at Pixabay

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