The Right to Travel and National Quarantines: Coronavirus Tests the Limits
Written by Meryl Chertoff, Executive Director, SALPAL
At the near daily coronavirus task force briefings at the White House, President Trump is asked repeatedly about whether and when he will impose a national quarantine. The Governor of Florida, Ron De Santis, embarrassed by photos of spring breakers at Daytona and other beaches in the midst of a public health emergency in his state has pivoted and threatens arriving air travelers from the New York metropolitan area with a choice of exclusion or quarantine for fourteen days, while at the same time refusing to impose shelter in place orders for Florida residents. Governors in Hawaii, Alaska and Rhode Island also are attempting to order quarantine for any out of state arrivals. On the Outer Banks of North Carolina, residents of second homes are being turned away by county officials at roadblocks and told to return to their primary residence.
Americans, accustomed as we are to freedom to travel and to move about, both within the US and globally, are rightly chilled by these reports. But we are in uncharted territory now, with two models coming into conflict. The first is the constitutional/civil rights model. This model provides procedural and due process guarantees of rights found in the Constitution. Generally, any restrictions on liberty must be targeted, non-discriminatory, and use the least restrictive means to achieve its ends. The second model is the public health model. This considers only the risk of infection, the likelihood of severe illness and death, and the strain on hospital and financial resources. As in wartime, the executive power is at its zenith in a public health emergency. But as Justice O’Connor said in the Guantanamo cases “the war power is not a blank check.” As long as the courts are functioning (and in the current situation, that is a real if) the clash of the two models still need to be tested. What may seem like a reasonable step in today’s emergency will create a hangover when invoked as precedent in less dire circumstances by rules guided by authoritarian impulses.
The Right to Travel: International Borders
The right to travel is not absolute. Many of the court challenges to global travel restrictions on US citizens and visitors date to 1960’s “red scare” cases. The restrictions were challenged on rights of speech and association, with varying results. In a sense, the US government was seeking to keep out the “contagion” of communism.
Even more relevant are the quarantine cases. Whether the border is land, an international airport, or a marine port, US customs and border control may refuse entry to non-residents and place conditions like quarantine on returning US residents. This authority has existed by statute nearly from the beginning of the Republic. The authority to address contagious diseases introduced into the US has been tested at first in 1963 and later in a 2007 case. Both involved individuals who had traveled abroad, and upon returning to the US, were placed in federal quarantine. In the 1963 case, a habeas petition was denied after the US traveler, Ellen Siegel, returned from Sweden, where there had been a smallpox outbreak. A fourteen-day quarantine was upheld. The 2007 case involved an American who traveled to Europe while suffering from multi-drug resistant tuberculosis, and was isolated for a total of five days. In each case, a specific named individual was the subject of the quarantine, there was ample evidence that the individual posed a risk of infection to others, and due process was provided during the quarantine period.
The Right to Travel Domestically under Federal Law
The right of Americans to travel interstate in the United States has never been substantially judicially questioned or limited. In 1941, the Court declared unconstitutional California’s restriction upon the migration of the “Okies”—whose travails are famously documented in “The Grapes of Wrath.” Justice Douglas referred to “the right of free movement” as “a right of national citizenship,” and the rights of the migrants were upheld under the Commerce Clause.
The Privileges and Immunities Clause protects the rights of US citizens, who are each also the citizens of a state, against discriminatory treatment under the law of a different state. In a 1985 case, the Court found that the Privileges and Immunities clause prohibited discrimination against a non-resident except where (i) there is a substantial reason for the difference in treatment; and (ii) the discrimination practiced against nonresidents bears a substantial relationship to the State’s objective. In deciding whether the discrimination bears a close or substantial relationship to the State’s objective, the Court has considered the availability of less restrictive means.
The baseline, then, is that freedom of movement within and between states is Constitutionally protected.
Both the President and the lead cabinet level agency, the Department of Health and Human Services, and the governors have powers in a public health emergency that conflict with and limit the right to travel.
The present federal coronavirus emergency relies on three separate authorities: the one declared by the President, both invoking Section 201 of the 1976 National Emergencies Act, and the Stafford Act; and the public health emergency declared in January by the Secretary of Health and Human Services under the 1944 Public Health Services Act (PHSA).
The PHSA authorities are the ones that have the most potential to impact interstate travel. While in the past, the powers used focused only on travelers into the United States, the operative language of PHSA also addresses travel between states.
A little recent history is in order. During the 2014 – 2016 Ebola outbreak, the CDC established a program of active screening at U.S airports and issued guidance to local and state health authorities. It included a recommendation that symptomatic travelers returning from afflicted countries be transferred to local hospitals, and asymptomatic ones be quarantined or monitored. Kaci Hickox, a nurse who had treated Ebola patients in Sierra Leone, registered a fever when she was screened at Newark Airport. At the direction of Governor Christie of New Jersey, she was isolated at a New Jersey hospital, and then transferred to her home state of Maine, where she was quarantined. She sued New Jersey both on constitutional and state law grounds. The constitutional challenges were dismissed on sovereign immunity grounds, and the state law claims including false imprisonment were settled.
The CDC, the agency within HHS charged with executing on the PHS authorities used lessons from her case, along with what they learned dealing with SARS, MERS and measles, to rewrite regulations for the PHSA. They focused both on the interstate authorities, and the foreign authorities. Under the regulations, enacted in the last days of the Obama administration, CDC claims it is using the least restrictive means. But the new rules gives CDC broad discretion on when to detain individuals and when to impose travel restrictions. The regulations also appear to collapse the rules that govern travelers entering the US from overseas, and those traveling interstate. It allows detention when the CDC “reasonably believes” the individual or a group of individuals are infected, and are in the “qualifying stages” of the disease—which can include people who are asymptomatic and appear healthy. Even the possibility of exposure qualifies. Detained people can get their case reconsidered within 72 hours, but the restriction can be renewed repeatedly. The only question is whether there is a reasonable basis to believe the person is affected and is the person infectious or pre-infectious.
What happens when these rules are mapped onto large group: New Jersey residents with a retirement residence on the Outer Banks of North Carolina? Construction laborers from the Florida panhandle who have been furloughed from jobs fueled by the construction boom in Miami?
The new regulations were conceived with the idea that they would be applied to specific, named persons or an identifiable group of travelers. These people would be identified by the traditional public health tools of contact tracing or history of exposure. Those were the techniques used to isolate cruise ship passengers sickened by coronavirus, and to quarantine the as-yet well passengers from the same ships in later February. But an approach that may be justified at our borders may be too rights-restrictive for dealing with interstate and intrastate travel during the current outbreak. Since testing is inadequate (so the true infection rate cannot be guessed from state to state or even within states) the death rate is relatively low (certainly compared to Ebola and SARS) and most coronavirus infections are mild, the exercise of public health emergency powers should face a higher burden of justification in this outbreak than past encounters with more lethal diseases.
That is why the regulations need to be tested in court. A recent review of the CDC regulations point out that the characteristics of the particular disease are relevant to the degree of deprivation of the liberty interest justified in combatting its spread. The gravity and circumstances of the outbreak, the disease characteristics, the availability of control measures, and the characteristics of the individual in question affect the strength of the government’s justification for limiting a right. The current crisis is the first test of the 2017 regulations, and they may well be too harsh for the moment.
Now what about Governor DeSantis’ determination to keep New Yorkers out of Florida? He has declared two emergencies: one using his powers under the Florida Constitution, and the other as a Stafford Act declaration, which tees up eligibility for federal emergency financial aid. Historically, the powers of a governor to order a quarantine are quite extensive, and while they may object, the visiting New Yorker may have little recourse. Still, the vagueness of DeSantis’ order is a clue to how poorly conceived it is, and might itself allow for a challenge. The order includes people who have no exposure risk: say people from rural upstate New York and excludes people who may be at high risk: people who have traveled from New Rochelle New York, a viral epicenter, through a Philadelphia airport, for example. What about foreign visitors who transited through New York? What about returning Floridians? They have been exposed to the same virus during their travel to New York. The flaw makes the rule both “under and over-inclusive” often a constitutionally fatal flaw.
DeSantis original goal: to shut down air traffic from the New York metro area, is even more worrisome. Again, the Edwards case of the Oklahoma migration is instructive, and as here, it focused on so-called “undesirables.” The Commerce Clause suggests that there is a very high bar to such a broad brush approach that does not distinguish between those from an entire city or state containing millions of people, and some of those damaged by DeSantis’ approach may consider their legal recourse.
If DeSantis specifies an end date for a quarantine order, if it does not discriminate in intent or effect against protected classes of people, and if it provides a due process provision allowing individuals to challenge their confinement, a Court is likely to uphold it.
Now for the roadblocks to the Outer Banks. As far back as 1900, US Courts have prohibited these, particularly where any invidious discrimination is involved. They look like a “cordon sanitaire”—an area where any movement in or out is restricted. Last month in New Rochelle, similar restrictions of movement were set up after it became a coronavirus hotspot; but the restrictions were voluntary, and because of the level of transparency, a high degree of trust led to cooperation rather than evasion. The North Carolina situation is the inverse of New Rochelle: it is meant to keep people out, rather than keeping people isolated until the incubation period has ended for the disease. The North Carolina roadblocks are set up on state roads, do not appear to be not state- mandated or sanctioned, and so immediately seem to exceed the power of the county; they impede commerce; and they interfere with the residents of one state enjoying their property interest in a residence they own in another state. Without clear understandings of the legal basis for the roadblocks, their duration, or how an individual can challenge them as applied, it is not clear they would be upheld by a Court.
What is important to remember here is that we are only at the beginning, and not the end of this struggle to balance public health exigencies and constitutional rights. Whatever executive authorities to the Governors and the President are upheld here, may be invoked down the road. As Justice Jackson wrote in Korematsu v. United States the case that upheld the detention of Japanese Americans during the Second World War an emergency power “lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” No single discipline can lead this campaign for much longer.
Meryl Justin Chertoff is Executive Director of the Georgetown Project on State and Local Government Policy and Law. Contact information: firstname.lastname@example.org; 202-662-4258