In this analysis at the Harvard Law Review blog, Constitutional scholar Anthony Michael Kreis says state policies implementing de facto travel restrictions on people from other states may raise Constitutional concerns but are likely to be upheld.
Last week, President Trump discussed the possibility of implementing a no travel order around the states of New Jersey, New York, and Connecticut. Ultimately, the Centers for Disease Control issued a (still unprecedented) travel advisory for those three states. Meanwhile, several states, including Texas, and Florida, expressing concerns about travelers from this and other “hot spot” areas, issued orders requiring 14 day quarantines for people from such areas traveling into their states. Alaska, Hawaii, Rhode Island, and Massachusetts have imposed mandatory quarantines on all travelers from other states.
The Supreme Court has previously frowned upon laws that restrict interstate travel as an impermissible burden on interstate commerce, most notably in the 1941 Edwards v. California case. However, as Kreis notes, the situation states are facing with this pandemic is not about economic protectionism, as the Edwards case discussed. Rather, Kreis looks further back to 19th century Supreme Court cases supporting the right of the state to quarantine potentially infected livestock and people, protecting diseases from entering their jurisdictions.
Broad-based travel restrictions should raise significant civil rights and due process questions, and challenges to such policies should be expected. However, given how few tools, beyond movement restrictions, are available to states to slow or prevent the spread of Coronavirus, the deadliness of the disease, and, perhaps most importantly, the lack of reliable, universal and rapid testing, which would allow for more targeted regulation of movement, Kreis believes “the likelihood of judicial intervention in the middle of a global public health crisis where there is at least a plausible rationale for the order’s geographic scope is near zero.”
