Suspending Constitutional Rights During COVID-19

U.S. Attorney General William Barr is now asking Congress to suspend parts of the U.S. Constitution that guarantees all individuals the right to a speedy and fair trial, the right to bail, and the right to due process under the law.  He makes this utterly absurd request under the guise of the Covid-19 emergency. He wants the chief judge of each federal district to be empowered to decide which people to hold indefinitely without bail or trial and continue all sorts of other hearings and trials both criminal and civil.  

Suspending such constitutional rights is completely unnecessary since our justice system can easily adapt (as we are seeing in many parts of the country today) to the new realities of physical distancing, limiting gatherings, dispensing with in-person contact visitation with inmates, and continuing trials and hearings for periods of time when necessary.  

In fact, here in Minnesota, our courts are adapting very well.  We’re doing phone conferences for parties; video appearances for attorneys and litigants; video and/or non in-person attorney meetings with in-custody clients; short trial continuances for some civil cases and out-of-custody criminal cases, and lowering bails and imposing more out-of-custody conditions for people in the jails.

But I don’t think A.G. Barr’s request is about his distress over whether our court system can handle the burdens of an emergency. Rather, it seems to me that Barr’s position is really a precursor to a possible request by the Trump administration to postpone the 2020 Presidential Election.

Let me set the scene that I hope never happens – it’s August, half of the country is infected with the virus, thousands have died, hospitals are jam packed, medical supplies are almost depleted, unemployment is 30%, and the economy has contracted to a fraction of its usual size.  The President expands his powers under the 1976 National Emergencies Act and declares that the November election must be postponed until the country has healed.  

Congress has the power to override such a declaration and immediately terminate the President’s emergency powers by passing a joint resolution.  But if both houses don’t agree, which is likely in our highly partisan political climate, the process could take months to hash out in conference committees.  The general election would, therefore, be postponed for some completely unknown period. 

This is not some fanciful scenario but a possible reality that we must all be prepared for and concerned about.  Our Presidential Election has never been postponed – not even during our civil war or world wars – and it must not be postponed over a pandemic.  We have the laws, process, technology, perseverance and tenacity to make sure that we stay the course and keep our national election date.

- Joe