Jun 03, 2020
COVID-19 Based Travel Restrictions: Going Too Far?
Jun 03, 2020
By Karthik Raju
As governments work to limit the spread of the COVID-19 virus, we have adjusted to closed shopping malls and restaurants, avoiding social gatherings, and limiting our everyday travel. Indeed, most of us have limited all of our travel. But what if we didn’t? Most of us aren’t surprised that we can’t fly to certain countries or that the U.S. is prohibiting travel from others—Brazil being a recent addition to that list. But what about travel within the United States? Can other states keep us out? Other cities? The answers may not be what you think.
Some states have recently imposed restrictions and obligations on out-of-state travelers. To a lesser extent, even some local governments have enacted bans that serve to exclude visitors. Just like the international restrictions, the purpose of these inter- and intra-state travel restrictions is to reduce the spread of infection, but they represent an extraordinary assertion of state and local police powers, and raise fundamental constitutional considerations.
Recent Interstate Travel Restrictions
In late March, as the number of COVID-19 cases in New York was rising quickly, Rhode Island Governor Gina Raimondo signed an executive order authorizing the state police and National Guard to stop any vehicle displaying New York plates. The order was quickly amended to include vehicles with any out-of-state plates, seemingly to avoid a discrimination challenge. Any out-of-state resident is required to provide their contact information and self-quarantine for fourteen days if they intend to remain in the state. Violators are subject to fines and/or being arrested and charged.
In Florida, officials noticed increased travel from the New York-New Jersey-Connecticut tri-state region as infection numbers in those states grew. Governor Ron DeSantis ordered checkpoints on interstate I-95 at the Georgia border where travelers from those states whose destination is Florida are directed by law enforcement to self-quarantine for fourteen days. The restriction was soon amended to include travelers from Louisiana as infection rates there spiked. Violators of DeSantis’ executive order face punishments of up to 60 days in jail and a $500 fine. Texas Governor Greg Abbott issued similar orders.
Sources of State Power
Broadly speaking, the authority for a governor to issue an executive order derives from state constitutions, statutes, and caselaw. Executive orders are generally said to carry the full force and effect of legislated law, and provide for specific sanctions when an order is violated. In Florida, for instance, Florida Statute 252.50 provides that violation of an executive order issued during a state of emergency subjects a defendant to fines and jail. A Rhode Island statute creates a similar scheme.
It is well established that states have expansive powers to regulate for the health, safety, and general welfare of their citizens. Police powers are rooted in the Tenth Amendment to the United States Constitution, which reserves to the states those, “powers not delegated to the United States by the Constitution.” For instance, the power of states to impose mandatory quarantines has long been recognized. Indeed, as far back as 1824, Chief Justice Marshall wrote in Gibbons v. Ogden that the power to quarantine, “flow[s] from the acknowledged power of a State, to provide for the health of its citizens.” (Gibbons v. Ogden (1824) 22 U.S. 1, 205.)
It is axiomatic, however, that regulations imposed by a state to protect the health and welfare of its citizens must not run afoul of constitutional protections. A state’s exercise of police powers in moments of emergency are more likely than usual to implicate fundamental civil liberties concerns. Restrictions on travel certainly do.
The Legality of Interstate Travel Restrictions
A state cannot normally prohibit entry to residents of other states. In the landmark case Edwards v. California (1941) 314 U.S. 160, the U.S. Supreme Court ruled unconstitutional a California law that prohibited bringing a non-resident “indigent person” into the state. The Court held the law violated the Commerce Clause because, “the transportation of persons is ‘commerce,’” and the law unduly burdened the free movement of commerce across state lines. (Id. at p. 172.) Attempts to restrict travel among states may also run afoul of a person’s substantive right to travel and the Privileges and Immunities clause of the Constitution. But courts have ruled the right is not without limits, particularly in the face of a public health emergency.
The Supreme Court has affirmed the power of states to place restrictions on entry by non-residents owing to a disease outbreak and has consistently affirmed the quarantine powers of state governments. Indeed, the Court has written that a state, "may exclude from its limits…persons afflicted by contagious or infectious diseases.” (Railroad Co. v. Husen (1877) 95 U.S. 465, 471.)
The specific issue of refusing entry to visitors in the midst of a pandemic was addressed in Compagnie Francaise de Navigation à Vapeur v. Louisiana State Bd. of Health (1902) 186 U.S. 380. There, the Supreme Court upheld the power of Louisiana to refuse entry to ship passengers who had traveled from abroad and were attempting to disembark during a yellow fever outbreak in the state. The Court ruled “beyond question” that, “state quarantine laws and state laws for the purpose of preventing, eradicating or controlling the spread of contagious or infectious diseases, are not repugnant to the Constitution of the United States, although their operation affects interstate or foreign commerce.” (Id. at p. 387.) Notably, the Court upheld the State’s power to refuse entry despite there not being a single infected passenger aboard the ship. Accordingly, it seems evident that some travel restrictions during an epidemic will not be found to be per se unlawful.
Vehicle Stops Under the Fourth Amendment
As noted earlier, travel restrictions may implicate other constitutional rights beyond the right to travel, such as the Fourth Amendment’s right to be free from unreasonable searches and seizures. To comply with individuals’ Fourth Amendment protections when conducting traffic stops, a law enforcement officer must have at least reasonable suspicion that criminal activity is afoot. Thus, an officer has enough cause to make a stop where he observes a crime in progress – a hit and run, for example. State laws allowing officers to stop out-of-state drivers absent any indication of criminal activity are of particular concern to civil rights advocates.
In Rhode Island, the American Civil Liberties Union argued that the state was acting unconstitutionally in stopping vehicles where no crime had been observed. In a March 26th statement, the organization wrote, “under the Fourth Amendment, having a New York state license plate simply does not, and cannot, constitute ‘probable cause’ to allow police to stop a car and interrogate the driver, no matter how laudable the goal of the stop may be.”
The ACLU called for the Rhode Island Governor to rescind her order, but it took no legal action. The organization states that, “because the police do not ask for ID at the stops, have disavowed any attempt at law enforcement during them, and take no action against drivers who refuse to provide information, the ACLU has held off on taking any legal action for the time being.”
Beyond the power to quarantine, there is little case law weighing the implications of a public health crisis on Fourth Amendment rights. In response to a challenge as to the lawfulness of stopping out-of-state vehicles, states might argue that an out-of-state license plate provides an officer sufficient individualized suspicion to believe a driver has been out of state and thus subject to the state’s quarantine order. However, one might well respond that the state could accomplish its goal of advising drivers of the quarantine by less intrusive means such as posting signs at the state border. States might also defend any challenges on the grounds that stopping vehicles with out-of-state plates is not an unreasonable seizure where the state is acting pursuant to its broad police powers to protect the health and welfare of its citizens during a pandemic. With the nation currently easing pandemic restrictions, we may not see development of caselaw in this area anytime soon.
Local Travel Restrictions
Some state governors have encouraged – but not required – residents of harder hit cities within their own state to avoid travelling to less affected regions of the state. Examples include Gov. Mike Dunleavy of Alaska and Gov. Phil Murphy in New Jersey. But several local governments have sought to restrict incoming travel from not only out-of-state residents, but also travel from in-state residents whose primary residence is outside the county. These restrictions represent the assertion of power by local municipalities to enact their own pandemic restrictions and in so doing to restrict intrastate travel.
In California, shelter-in-place orders have been instituted at both state and local levels. In fact, seven bay area counties ordered residents to stay at home days before the State issued its own order. Counties and municipalities derive their power in large part from the California Constitution, which provides, “A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.” (Cal. Const., art. XI § 7.) To the extent there have been conflicts between competing orders, state and local governments seem to be working cooperatively. In Santa Clara, county counsel advised, “I want to remind everyone that we must all abide by all the local health orders and the state health orders. That means whichever is stricter, in some cases that is the state order.”
As travelers flocked to their second homes in El Dorado County, local officials banned all non-essential travel into the South Lake Tahoe basin from non-local residents. The County stated that preserving limited local medical resources along with virus containment were the objectives for the ban. In particularly blunt language, the County’s order provided that travel, “for owners to occupy their second homes for recreation or vacation…is non-essential” and therefore prohibited. However, County officials explicitly acknowledged the evident constitutional concerns in denying homeowners access to their properties. Accordingly, South Lake Tahoe officials have not taken enforcement action against any second homeowners, but they have fined several people for nonessential travel into the region.
In the Outer Banks of North Carolina, the Dare County Control Board, a local emergency management governing body, issued a highly restrictive declaration preventing non-county residents from entering. Checkpoints were established, and only those who displayed a North Carolina state ID with a Dare County address were allowed entry. Access was denied even to some local homeowners because they proffered ID with an out-of-county primary residence. Non-resident property owners soon filed a federal suit alleging infringement of the right to travel “in the State of North Carolina” and other constitutional violations. The County subsequently relaxed the restrictions and the case was continued as both sides agreed to mediate the dispute.
Apart from legal considerations, some governments have expressed concern about the implications of proposed intrastate travel bans on the perceived unity of the state. Local officials from counties in upstate New York and eastern Long Island implored Governor Andrew Cuomo to ban non-essential travel from New York City residents. In calling on the Governor to act, local officials implicitly acknowledged the absence of local authority to mandate the restrictions. However, Cuomo strongly rejected these demands, although not on stated legal grounds. Instead, he argued, "I don't like it socially or culturally," and "I don't like what it says of us as one state.”
Just as with interstate travel, as states and localities reduce pandemic-related restrictions, we may not see any new intrastate limitations or resulting caselaw. However, should infections spike, less impacted regions are likely to adopt new local travel restrictions. County and municipal governments certainly possess their own powers to regulate for local welfare. But when such regulation impinges on property or travel rights, we are likely to see more court review the longer these limitations are in effect.
It is uncertain how much longer states and local governments will maintain their remaining restrictions that impact travel between and within states. With caselaw that supports a state’s power to impose quarantine and to impose at least some additional travel limitations intended to contain the spread of communicable disease, it seems reasonable to believe that tailored and time-limited restrictions that impact travel between states would be upheld. Local orders that build upon state orders have imposed additional and significant restrictions in some places. Local and state orders affect a vast number of people across the country and implicate deeply rooted civil liberties. The longer these restrictions remain in effect, the more they demand judicial scrutiny. That said, noted constitutional law professor Eugene Volokh of UCLA’s School of Law has opined that some forms of travel restrictions are likely to withstand scrutiny, “based on the general thrust of the cases—coupled with the fact that judges likely don't want to deny government officials the temporary tools they need to stave off likely tens of thousands (or more) deaths in this extraordinary time....” (Eugene Volokh, Restrictions on Interstate (and Intrastate) Travel in an Epidemic, The Volokh Conspiracy Blog (Apr. 4, 2020), https://reason.com/2020/04/04/restrictions-on-interstate-and-intrastate-travel-in-an-epidemic/?utm_source=dlvr.it&utm_medium=twitter.)
Karthik Raju is a Deputy Public Defender at Marin County Public Defender and is a Board Director for the Marin County Bar Association.