Bloomberg Law
April 2, 2020, 8:00 AM

INSIGHT: Coronavirus Threatens Constitutionally Protected Freedom of Movement

Meryl Justin Chertoff
Meryl Justin Chertoff
Georgetown Law

In a week of chilling news on the new coronavirus, many of us are so preoccupied with the unfolding devastation to our nation’s health and economy that attacks of our basic freedoms and liberties seem secondary. But developments regarding limits on interstate travel rights are noteworthy.

In Rhode Island, Gov. Gina Raimondo (D) invoked public health emergency powers to order State Police to stop any car with New York license plates, and National Guard troops to go door-to-door to find people have traveled recently from New York, ordering them to self-quarantine or face jail time or fines.

In Florida, Gov. Ron DeSantis (R) issued a mandatory 14-day quarantine of any traveler from New York, New Jersey, and Connecticut.

Kansas, Hawaii, South Carolina and Alaska have done the same as Florida, and counties in North Carolina and Wisconsin are turning around vehicles of drivers with out-of-state plates seeking access to resort properties they own.

On March 28, President Donald Trump said that he would order a federal quarantine of people from the New York tri-state area. New York Gov. Andrew Cuomo (D) responded with a threat to sue; and coronavirus task force members persuaded the president to instead issue a travel advisory, at least for now.

While the powers of governors and the president in a public health emergency are extensive, these measures to halt travel inside the U.S. tear at the underpinnings of our federalist system which divides power between the federal government and the states.

Just a week ago, a group of national security experts convened by Lawfare dubbed a scenario of restriction on domestic travel highly unlikely, and likely to be extremely unpopular. We’re already there.

Constitutional Red Flags

Freedom of movement within and between states is constitutionally protected. The right of Americans to travel interstate in the U.S. has never been substantially judicially questioned or limited.

A 1941 U.S. Supreme Court case struck down California’s restriction upon the migration of the “Okies"—famously documented in “The Grapes of Wrath”—under the Commerce Clause. Another layer of protection comes from the Privileges and Immunities Clause sheltering U.S. citizens, who are each also the citizens of a state, against discriminatory treatment under the law of a different state.

In a public health emergency, as in wartime, executive authorities to interfere with those rights is at a zenith. It is not a blank check, though. The president’s emergency powers allow him to limit entry from outside the country to stop the spread of disease; it also provides some control over interstate activity. The governors control what happens inside their own states.

So when a governor prohibits out-of-staters from entering, that raises commerce clause and privileges and immunities red flags. When the president orders governors to take particular actions or refrain from them, that raises federalism concerns.

Since the dawn of the Republic, most of the public health emergency authorities lie with state government, and in general, the coronavirus crisis has shown governors and mayors leading in very positive ways. Gov. Cuomo (D), California Gov. Gavin Newsom (D), Ohio Gov. Mike DeWine (R), and Michigan Gov. Gretchen Whitmer (D), among others, model high levels of transparency, build trust with their constituents, and incorporate fairness to the most vulnerable in policy.

Through “horizontal federalism,” other states are adopting best practices they have piloted. But actions like those of Govs. Raimondo and DeSantis show that bad ideas, like good ones, can propagate horizontally across the states. That is why the federal response needs to show sensitivity to federalism concerns and provide incentives to interstate cooperation.

Barriers Around Communities Are Suspect

The current crisis juxtaposes rights against efficiency. The rights model is based on constitutional due process and federalism guarantees. In this model, restrictions on liberty must be limited in duration, non-discriminatory, and use the least restrictive means to achieve their goals. The public health model is an efficiency model, focusing on data about the risk of infection, the likelihood of severe illness and death, and the strain on hospital and financial resources.

The constitutional model is losing right now. One problem are 2017 regulations to the Public Health Services Act (PHSA), the Center for Disease Control promulgated in in the waning days of the Obama administration, after the 2014-2106 Ebola outbreak in West Africa.

The regulations greatly expanded domestic quarantine authorities under PHSA, one of the laws Trump cited in his coronavirus emergency declaration. Among other things, these regulations collapse the distinction between quarantine of travelers entering the U.S. from overseas, and those who fly or drive interstate. The government need not name specific individuals but can quarantine groups, without any showing that a particular group member is infected.

This effectively allows creation of “cordons sanitaire”—a barrier around an entire community—that does not allow anyone entry or exit. Such extreme measures are rights-violative and constitutionally suspect.

Civil rights groups have been uncharacteristically supine in the face of the actions in Rhode Island, Florida, and elsewhere. They need to step up and test these extreme infractions on rights and liberties in court, as they did during Ebola—because if current measures become precedents the results may be bitter next time.

A sliver of hope is presented by rapid progress on testing. On March 28, one company announced successful results for a five-minute spot test. If it is pushed out quickly, enforcement agencies will be able to ascertain which domestic travelers pose a public health risk with only a minor interference with liberty interests. This could avert a showdown between the efforts to protect state citizens, and our rights as U.S. citizens.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Meryl Justin Chertoff is executive director of SALPAL (Project on State and Local Government Policy and Law) and adjunct professor at Georgetown Law. She was director of the New Jersey Washington Office on 9/11, has been an aide to a New Jersey Assembly leader, and was a government relations professional. Chertoff served at the Federal Emergency Management Agency during the agency’s transition into the Department of Homeland Security.