How far is too far when it comes to restricting civilians’ rights in a crisis?
Civil liberties groups are eyeing national and state government officials as coronavirus-related restrictions mount.
When cases of the novel coronavirus first appeared on the west coast of the U.S. at the end of February, President Donald Trump referred to the outbreak as a hoax.
Yet come March 13, the president declared a national emergency, claiming additional measures would be needed to contain and combat the virus successfully. Since Trump’s declaration, certain entities from national and state governments have sought to expand their powers to better combat the spread of COVID-19. And critics have noticed, accusing them of manipulating political opportunism during a time of crisis.
Politicians using national emergencies as a means to implement agendas that otherwise might have had a hard time coming into existence is not a new concept. Notable instances include the Patriot Act’s increase of surveillance after 9/11 and the internment of tens of thousands of Japanese Americans during the height of World War II.
Here are a few things that have made civil rights groups question politicians’ motives amid the pandemic.
On the federal level
The Department of Justice requested the ability “to detain people indefinitely without trial during emergencies” from Congress, documents first accessed by POLITICO on March 21 showed. If allowed, Attorney General William Barr would have the power to ask the chief judge of any district court to pause criminal, civil and juvenile court proceedings during “any natural disaster, civil disobedience or other emergency situation.” This would encompass pre-arrest, post-arrest, pre-trial, trial and post-trial procedures.
“So that means you could be arrested and never brought before a judge until they decide that the emergency or the civil disobedience is over,” Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers, told POLITICO. “I find it absolutely terrifying. Especially in a time of emergency, we should be very careful about granting new powers to the government.”
The D.O.J. would also be allowed to halt statutes of limitations in criminal and civil cases, which would extend them for a year following the end of the national emergency.
It appears unlikely that the Justice Department’s efforts will amount to anything substantive; since its initial denial, the D.O.J. has not revisited the issue. Democrats, who currently hold a comfortable majority in the House of Representatives, do not want to acquiesce power to a portion of the federal government that many on the left say is too closely allied with Trump. But representatives on both sides of the aisle chimed in with their discomforts and disbelief.
On the state level
Meanwhile in eight states, legal battles surrounding intensified anti-abortion efforts flared. Tennessee became the most recent state — following Alabama, Arkansas, Iowa, Louisiana, Ohio, Oklahoma and Texas — to face legal challenges from the American Civil Liberties Union for proposing suspensions on legal access to abortions as a “nonessential medical procedure.”
In Arkansas, state officials claimed the move was intended to preserve as many medical resources as possible for the fight against the coronavirus; in Texas, U.S. District Judge Lee Yeakel overruled Texas Attorney General Ken Paxton’s decision to “stop all elective medical procedures during the COVID-19 crisis” after abortion providers in the state asked the U.S. Supreme Court to end the state’s temporary ban. And Planned Parenthood and the ACLU asked federal courts to overturn the decisions made in Tennessee and Louisiana to ban surgical abortions during the pandemic.
Tennessee Governor Bill Lee (R) signed an executive order on March 23 that suspended abortions as part of nonessential medical services, following in Arkansas’ footsteps. The abortion ban in Tennessee is scheduled to expire after April 30, however many abortion rights advocates argue some women will not be able to wait that long, given the limited time frame after impregnation women have to undergo the procedure.
All of this combined could lead to a situation that’s been bubbling below the surface of the Supreme Court: An effective reversal of Roe v. Wade, which made abortion a constitutional right almost 50 years ago.
So with Trump’s national emergency declaration now entering its second month, the question of what civil liberties might be subverted in the near future becomes more important.
During times of crisis, some temporary restrictive measures are necessary for the good of the nation’s health. But how far is too far? And will be it possible for the American public to recognize what the concept of “going too far” looks like before it’s already happened?
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