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.
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.
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?