Hawaii, Rhode Island, and Florida are just some of the states whose coronavirus travel restrictions may be unconstitutional.
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Rhode Island and Florida Policies
Rhode Island initiated a policy of not only stopping New Yorkers from entering the state but followed that up by going door-to-door to find those that had recently been in the empire state. Florida dealt with New Yorkers and Louisianans by dispatching the state patrol to busy highways for screening. The same policies applied to both states for New Jersey residents as well.
Those who were found to have been in affected areas were required to self-quarantine for 14 days. The Florida Keys were also closed to non-Floridians. As of late April, the Keys had 74 cases and three deaths.
Rhode Island has stopped the checkpoints as has Florida but has kept the Keys closed.
Hawaiian Policies
Hawai’i’s policy of restricting visitors to a mandatory 14-day quarantine and keeping their own residents under shelter in place orders is ruffling feathers. The state’s unemployment numbers have risen above those that are attributable to the tourism industry. The state also required new arrivals to demonstrate a working contact number upon landing.
Gary Leff covered some new policies under consideration that are even more drastic despite the fact that the virus is under control. Gary writes:
- “Every non-resident arriving must have a reservation to leave. This is already required, but now details are demanded on arrival forms as passengers get off of planes. If someone has quarantined for two weeks, and is healthy, a requirement to leave does nothing to protect the community from coronavirus.
- Airport redesigns are under consideration to funnel passengers through arrival checkpoints. Having passengers funnel to one of three checkpoints is being considered for Honolulu.
- Mandatory state transportation to quarantine location effectively putting passengers into government custody until they arrive at their quarantine-on-arrival location. This is merely under discussion, rather than being implemented currently, and may be open to legal challenge.
- Detaining people in their quarantine location “Another idea that has been discussed is giving visitors a one-time use room key so if they leave, they can’t get back in without alerting hotel staff.” This is not obviously legal.”
What Does the Constitution Say?
The Constitution allows for the free movement of US citizens to and from any state as they so choose. Harvard’s Law blog recently took up this issue:
“These [Rhode Island, Florida, Hawai’i] gubernatorial actions raise essential questions about states’ power to restrict the constitutional right to interstate travel” the writer continues “However, even where there is a public health need to restrict the transport of products is demonstrated, states nonetheless retain an obligation to serve that public health by seeking out nondiscriminatory alternatives. “
The Harvard Law blog and other sources on the Hawai’i issue suggest that due to the extraordinary circumstances of the Coronavirus that courts may be unlikely to uphold the constitutionally protected rights of citizens.
An abstract from the Journal of Information and Privacy Law expands on this further:
“As a fundamental right inherent in American citizenship and the nature of the federal union, the right to travel in the United States is basic to American liberty. The right precedes the creation of the United States and appears in the Articles of Confederation. The U.S. Constitution and Supreme Court recognize and protect the right to interstate travel. The travel right entails privacy and free domestic movement without governmental abridgement.”
The Articles of Confederation outline this even more clearly:
“shall be entitled to all privileges and immunities of free citizens in the several states; and the people of each state shall have free ingress and regress to and from any other state”
Speaking to the concept of privacy of American citizens while travelling, the abstract also says:
“They undermine citizen rights to travel and to privacy. These regulations impermissibly require citizens to relinquish one fundamental right of privacy in order to exercise another fundamental right of travel.”
While originally intended to apply to identity checks at airports for domestic travel, today it speaks to all of the cases above. In the case of Rhode Island, going door-to-door unconstitutionally violates the right of interstate travel and violates privacy. In the case of Hawai’i cell phone disclosure at the airport does the same.
Reversal of Position
A few weeks ago I took a position on Hawai’i’s policies to restrict visitors in support of its right as a state to restrict visitors and enact their own policies, though I wouldn’t visit if they enacted them. Upon further review, I have reversed my position on the topic.
The case is clear that there are vast constitutional violations in these policies. While those who make them might have the best of intentions, I hold my constitutional rights dear. Further, the need for even emergency measures has subsided.
Conclusion
Privacy is an innate right to Americans that we have relinquished in the name of safety, in the nearly 20 years since September 11th, we have yet to return to a state of unmolested travel. In the case of interstate travel, this right pre-dates the constitution in the Articles of Confederation and Hawai’i has neither the right nor need to restrict lawful US Citizenry travel.
What do you think? Have these states violated the constitution? If so, were they right to do so given the circumstances? If not, why not?
Rhode Island has not stopped the checkpoints. Not only are they stopping upon entering the state. They are stopping out of state cars on the road.
Virtually every constitutional right can be (and some have been) essentially suspended in times of war in the name of national security. It’s almost as if the USSC considers the safety and security of citizens above all else, including those explicitly documented in the Constitution, even in the very first amendment. The states are acting to protect the lives of its citizens, and there is no greater responsibility of government. If all Americans are dead, after all, or our country no longer exists because we’ve been conquered by another, the Bill of Rights doesn’t do any of us any good. If challenged, however, I wouldn’t be surprised if this very pro-business Supreme Court finds the restrictions are in violation of the Constitution, though it might not be so cut-and-dry. After all, even that very traditional institution has had to change its procedures in light of the pandemic.
Damn, Kyle, you get it. First travel blogger I’ve seen that understands things beyond the PANIC!!! headlines everyone else seems to focus on.
It’s sad that we as a nation give up our freedoms so easily for safety :/
I’m flying every week, and have ignored or worked around any restrictions attempted to be placed on me. I am proud of that, and I get thanks at every hotel and restaurant I visit that hears about it.
Most people will argue with you, but, that means you’re on the right track.
Don’t stop. The nation needs your voice.
George, as I would say to my kids — you’re not an idiot, but your actions are idiotic. I’m shocked at your disregard for common sense and blatant implied encouragement to flaunt the guidance. All this hand wringing over the restrictions of “constitutional rights”. So you can’t go to a restaurant regularly, or fly when or where you want? Get over it. In eight weeks I have not felt overly restricted. I am free to walk my neighborhood, free to get takeout from restaurants, free to go for a hike, free to work, free to do so many things. Yes there are some limitations, but I’M ALSO FREE FROM DEATH. And as a human, that is my number one priority — to protect myself and my family. I fully expect to return to all activities at some point in the future, but by being careful I would hope that “some point” is sooner rather than later. Unfortunately, as clearly illustrated in the data, “some point” is later because you and people like you continue to “work around” the guidance and continue to sustain the virus’ cycle of infection and death. Just be thankful you don’t live in an 8×8 shanty, and enjoy the privilage to which you were likely born into.
As A Landis noted, the number of infections and deaths in the US remains high. Look at other counties like NZ, Australia, even Austria & Greece, where the numbers are substantially down and soon they will be returning to normal lives. While Americans continue to die because of action by you and your fellow “freedom fighters”. Thanks.
Oh, I believe the US had 25K+ new COVID cases yesterday, and 1500 deaths. We’ve had 80K+ deaths since this began-how many 9/11s is this? Things were hardly back to normal two months after that fateful day. Just because the novelty has worn off does not mean the danger has passed.
Seriously!? Leave the lawyering to lawyers. You sound like a clown. Not because I disagree with the conclusion but your attempt at lawyering is buffoonish. And no, I won’t expand on why. This blog is going downhill fast. I’m close to cutting it out of my daily rotation. Stick to subjects you know about. Stay out of legal analysis and epidemiology, for f’s sake.
See, e.g., Korematsu v. U.S., 323 U.S. 214. Happy now?
@Jay – We are certainly sorry to see you go. However, the notion that only lawyers can analyze information regarding the constitution or doctors can assess the severity of a mortality rate based on the available information (such as that linked in the piece) will leave you reading scientific journals only. Shut off the news, Lester Holt can’t report on bankruptcy because he’s a journalist and not a business owner. Forget CNN election analysis because Anderson Cooper never held office. I’m not Lester Holt, I’m not Anderson Cooper – I’m not even a journalist – but to dismiss editorial content solely based on the fact that they are not an expert in their field does not mean the opinion or interpretation is invalid.
What’s most disappointing is that you don’t even necessarily disagree with the assessment. I have to ask, since you reached a conclusion on it as well, are you an attorney or an epidemiologist?
@A Landis – As you point out, new deaths are 1500/day and falling. Last month in New York alone the number reached more than 3,000/day. The point of flattening the curve was not to wait until no one ever gets sick again, it was to reduce the number to a level our hospitals can handle. That has occurred and even in places like Nebraska where cases are just now climbing, they have more than enough capacity to handle the influx.
Maybe Hawaii could set up state run facilities or camps to house all of these quarantined visitors…they could even use that new, horrendously delayed, train system to transport them there. Perhaps even free showed while they’re at it.
Godwin’s Law…we have a winner!
The common good before oneself. Directly from the NSDAP.
I have lived through this mentality with red scares, war on “drugs”, war on “crime” creating possibly the greatest gulag in world history. The war on “terror” turning the US into a totalitarian state. And now the Corona hysteria where the sheep not only incarcerate themselves but insist that everyone do the same and feel empowered. For the common good perhaps sanitary-detention camps are needed. The modern day equivalent of box cars are waiting. ⁰
Live and Let’s Fly used to be one of my favorite blogs, Matthew being one of my favorite writers. But if you’re going to allow these sorts of posts from Kyle, I am not going to visit this blog anymore. I don’t imagine that will impact your lives at all of course, but this post is just encouraging people to protest the best measure we have against COVID19 so far-self-quarantine. So disheartening. Please consult a public health expert and see what they have to say about the measures you are crying about.
Do you disagree that it’s unconstitutional or disregard those rights because this situation supersedes it?
Nobody who knows anything about American law — and I don’t know all that much — understands that Constitutional rights are not absolute. The Supreme Court has been pretty clear that public health and safety concerns trump those rights, as do matters of national security. And if this pandemic does not qualify as a matter of public health and safety … well, I don’t know what does. Constitutional rights, after all, don’t help dead people. So I take it as a non-starter if the only or central argument is that these rules intended to stop the spread of the novel coronavirus are unconstitutional.
On the other hand, if the debate concerns whether or not these are the right restrictions, based on logical and scientific concerns, I am more than willing to entertain that debate. Even if authorities can claim that we are in a situation where we must set constitutional rights aside that does not absolve them of the responsibility of assuring that those policies are truly in the best interest of the public. And I have heard of plenty of recent restrictions that are just … dumb. I’m happy to discuss those.
But this general stubbornness about putting the collective good before individual benefit seems to be a particularly American quirk … and unfortunately so, in today’s context, I think.
@Shawn, these are all thought-provoking, well-articulated points.
Alaska also has a 14-day quarantine rule similar to Hawaii, though I suspect enforcement is less stringent there
Good to know, Ed. Thanks.
As a Hawaii resident, I wish they’d give me my rights back, including my “right to work”. And it’s not just the quarantine, we are 48th for number of cases and yet we residents aren’t even allowed to sit on a beach. It’s ludicrous, we can go to Walmart but not sit 6 feet apart on a beach??
The amount of bootlickers here disgust and infuriate me as do the snitches that I hear about everyday. Those that will allow un questioned fear mongering put them gleefully into incarceration but insist that all others follow suit. Shameful.
I never gave up my liberties twenty years ago for the reprehensible and most likely unconstitutional “patriot act” followed by the equally reprehensible “NDAA” horror. If this is how sheep operate going through prison enforcement rapiscan machines at airports or to be put in defacto incarceration now then the country is dead.
Why bring up Hawai’i and not Texas, which has had a much longer quarantine rule?
Because it’s inconsistent with the narrative he’s trying to create.
@UA-NYC – Because Texas is starting to re-open and Hawai’i is not. For what it’s worth, I also believe that Texas’ required 14-day self-quarantine for those who from or return from Louisiana falls into the same bucket. That’s a fair point to support the same argument.
Don’t worry, Kyle. Your personal freedom has been violated for far less than this. And you never cared. Step up to accept it for something more important. Poser.
As long as the personal freedom isn’t affecting his “rich kids of Instagramlite” lifestyle, it’s all good.
Lol
The Florida Keys are not closed off to non-Floridians, they are closed to anyone who isn’t a resident, property owner or verified worker. There are plenty of precedents for this, such as after a hurricane, which is also a state of emergency. Very poor fact checking, at best.
I’ll update it to say non-residents, thank you. I included a link to the supporting article.
Maybe the constitution needs to be amended to better reflect the current era then?
I couldn’t agree more. If this is what the people want going forward then, by all means, let’s change the laws. But states, municipalities, even the federal government can’t expect to have citizenry hold up mandates that violate their rights.
Well, then, people need to grow up and put the needs of the society instead of regurgitating right-wing talking points regarding the constitution and their personal rights? It might not be in the constitution, but your selfishness doesn’t mean you get the right to spread the disease and potentially kill other people.
Kyle Thank You! Very Well Said!
Problem today people are so steeped in the Fear & Force Factor (spreading of fear to masses & then use the force of state to limit freedoms) that they will try social shame you if you disagree with them or result to name calling who don’t want to discuss points! I was an avid traveler 8-9 months year & love this website for its great stories & updates on travel.
Even though I want to resume traveling which mostly for us entailed flying I’m not eager of having to be tested for every trip or possibly tagged/ traced (to avoid the ongoing test) or be the first to jump in first vaccine that comes out cuz of
US code §300aa-22 standards of Responsibility!
So our thinking now was the within state routes to travel within the US!
But now w/ each state for itself, even that is questionable!
By the way I forgot either Wyoming or Montana just closed all their campgrounds to out of staters!
Alternate Universe w/ No Clear Thinking Anymore!
No, not spreading of fear, just using common sense and not being selfish and arrogant.
The best analogy I’ve read about quarantining was this (and I”m totally going to butcher this) was about a bunch of passengers on a yacht. The owner of the yacht started making a hole in the floor of his stateroom because he wanted to see the fish beneath the hull. He chipped away at the flooring until he broke through. As water started flooding into his cabin and the yacht, the other passengers just stood around and said, “Well, it’s his yacht and his right to make that hole…” Of course the yacht sunk and everyone died. That’s how I view this nitwits and their “right” to do this and the “constitutionality” of that.
Kyle you’re a typical millennial douche.
Not a millenial. Any substantive disagreements or just this?
Kyle theres always trolls to make disparaging remarks hiding behind their screens!
Hawaii is doing it because their hospital system could not handle the influx of sick people. Since they are 5 hours from the mainland, they can’t just drive them to another hospital. They have enough hospitals for the local population but if a lot of tourist get sick and require hospitalization, it would collapse. Hawaii is America but the mindset is Asia. It’s a minority majority state. Asian mindset is all about the collective “we” vs “I” – if mainlanders come in droves without a strict quarantine and the virus spreads across the islands, the anger and outcry towards the mainland would be unprecedented. They will do what they have to do to protect themselves. The islands never trusted the mainland and having mainlanders forcing them to open so they can sit on a beach would forever damage the relationship between Hawaii and the mainland. While the independence folks of Hawaii have always been a fringe minority, I wouldn’t be surprise of more open talk of wanting to separate from the US if the mainland forces them to open. Independence would never happen, but the anger and bitterness would be astronomical. Most mainlanders just don’t get the mindset of Hawaii nor try – they just go for the beaches and parties without caring about the culture.
I take that back. Only Oahu has a robust hospital system. The other islands would easily be swamped with sick people. Many locals have to go to Oahu for treatments. Protecting their citizens is a foreign concept in much of America these days but Hawaii will do whatever they have to. It’s not just the virus, it’s hospital systems, nursing homes, etc. it’s not a black and white issue.
Even then, “robust” is relative. And should Oahu become overwhelmed, it’s not like the mainland where another city with adequate supplies or supplemental health care workers is just a short drive away. Hawaii is very much operating “alone and unafraid”, so they geography demands a different SOP for dealing with is.
Quarantine and restricted movement in time of disease rulings are consistent since John Marshall ruled in Gibbons v. Ogden in 1824. Korematsu is still controlling law on personal freedom of movement. Yes, the Japanese internment decision. You may not like it, but to say it’s unconstitutional is flat out garbage and makes you look like an idiot. Probably because YOU ARE AN IDIOT.
Here’s more ammo for you Holy cry babies… https://www.hawaiinewsnow.com/2020/05/12/report-hawaii-hotels-that-are-open-agree-issue-single-use-keys/
Don’t like it, don’t come. Super simple. Wanna cry about “Constitutional Rights”?… Bring on the the lawsuits. Lets see how far it gets. Btw, today we had exactly ONE new covid case. (Need i say it was a traveler, or is that unconstitutional?)