Constitutional Law Blog Essay

Contagion and the Right to Travel

Not since 1918 has the United States faced the kind of wide-scale public health crisis that Americans face today. The novel coronavirus pandemic of 2020 jeopardizes multiple millions of Americans’ lives, especially the elderly and immunocompromised. It also stands to cripple the American economy with the real prospect of the nation plunging into a depression. The virus itself is more easily transmitted than other seasonal diseases like the flu. Each non-isolated case of novel coronavirus will infect 2 to 2.5 additional people compared to the flu, where each additional case will infect 1.3 other people on average. Moreover, it is more deadly than the flu. As I write, nearly 85,000 Americans have been infected, and over 1,000 lives have been lost to the pandemic. These numbers will surely grow as the challenges to respond to the crisis mounts. Public health resources are strained, and the testing capacity of the United States lags behind other nations. 

Public health experts and government officials face a stark choice: swift crackdowns on private movement or the possibility of mass mortality. To “flatten the curve,” i.e., slow the exponential growth of new infections and avoid overwhelming the healthcare system, governors and mayors have mandated social distancing and instituted stay-at-home orders. And while the pandemic has touched every state in the nation, certain states like New York, New Jersey, and Washington have acute outbreaks. In response, some governors have instituted de facto travel bans for short-term visitors. The governors in Alaska and Hawaii issued mandatory self-quarantine periods for all persons entering either state for 14 days. Travelers whose final destinations are Florida or Texas coming from New York, New Jersey, and Connecticut must quarantine for 14 days, as must persons traveling from New Orleans to Texas. Rhode Island has instituted a similar policy directed at New Yorkers, including police stops of non-commercial vehicles entering the state with New York license plates, that has come under fire from the state American Civil Liberties Union chapter. 

These gubernatorial actions raise essential questions about states’ power to restrict the constitutional right to interstate travel that is grounded in dormant commerce clause doctrine. Observers are likely to initially turn to the foundational 1941 Supreme Court decision on the freedom of movement, Edwards v. California, for guidance because it captures restrictions on the movement of persons in a way no other case does. But, the history behind Edwards makes it incongruous with the dynamics underlying today’s contemporary crisis.

In Edwards, Fred Edwards was prosecuted under California’s anti-migrant law after he left his home in California to retrieve his destitute, pregnant sister and brother-in-law from Texas. Edwards was convicted of violating the state law banning persons from transporting “any indigent person who is not a resident” to California. The Supreme Court struck down the California statute as an impermissible burden on interstate commerce. Edwards rejected nearly a century-old precedent that blessed states’ police power to take “precautionary measures against the moral pestilence of paupers, vagabonds, and possibly convicts.” In this sense, Edwards’ freedom of movement principle is less helpful because it is best read as a rejection of economic protectionism in the form of a public charge rule informed by the animus that equated poverty with immorality. It was not a balancing of free movement and public health.

Rather, case law resolving the tension between public health and the movement of goods under the Commerce Clause long predated Edwards. Two livestock quarantine cases that date back to the late nineteenth century enforce states’ prerogative to establish rules to protect the public welfare against contagion, notwithstanding incidental burdens on interstate commerce. The Supreme Court blessed Colorado’s rule restricting the movement of cattle and horses into the state south of the state line and Kansas’ requirement that cattle originating from any place south of Kansas be immediately slaughtered or inspected. States cannot block interstate exchange in the name of economic protectionism but retain the right to impose restrictions, particularly when time is of the essence. 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 quarantined goods cases are about the shuffling of commercial products across state lines, but the Supreme Court took the same approach to state officials’ purported work to curb the transmission of communicable disease. In 1898, a French passenger ship, Britannia, sailed from Marseilles to Palermo, Italy with 408 passengers and cargo to New Orleans. The passengers included both foreign nationals and American citizens. When Britannia arrived outside New Orleans at a designated quarantine station, the ship’s passengers and merchandise were inspected, deemed free of disease, and given permission to proceed upriver. But, New Orleans established an absolute quarantine to help fight a yellow fever outbreak, first discovered in mid-September 1898.  New Orleanians’ fears were not unfounded— the city’s yellow fever epidemic, which began the year before, already claimed nearly 300 lives in 1897. When the ship arrived at New Orleans shortly after the first reported case, the city blocked Britannia’s passengers from disembarking, citing the newly instituted order that banned the “bodies of people, immigrants, soldiers, or others” from entering the city. 

The Supreme Court upheld the power of Louisiana officials to block the Britannia in Compagnie Francaise de Navigation a Vapeur v. Louisiana State Board of Health. The Court held that states’ power to order quarantine laws “is beyond question” and that the New Orleans order met constitutional muster under the Commerce Clause “although their operation affects interstate or foreign commerce, is not an open question.” The Court noted that in the absence of a federally enacted law to preempt state and local quarantine regulations affecting interstate commerce, regulations like New Orleans’ are permissible. Without a contrary federal command, the Supreme Court allowed a draconian measure to block healthy persons’ admission to the city and limit the potential for new vectors. 

The controversy over the right to interstate travel during a national public health crisis should not be conflated with a parallel debate about the constitutional due process constraints that exist or should exist to limit state quarantine and isolation powers generally. As for the freedom of movement, this moment should prompt a reconsideration of whether the Commerce Clause should protect the right to travel or if it is derived elsewhere in the Constitution. That worthy query notwithstanding, the right to travel cases and the livestock quarantine cases provide ample authority backing states’ power to limit interstate travel by restrictions placed on non-residents’ intrastate mobility. Of course, this power is not totally unfettered and there is room for courts to strike down quarantine orders under federal constitutional law that are arbitrary or overbroad.

Such was the case in Jew Ho v. Williamson where San Francisco officials imposed a racially discriminatory quarantine and In Re Smith where Brooklyn officials mandated isolation for anyone who refused a smallpox vaccine even though there was no basis to suspect they had been infected or exposed to the disease. Importantly, this history cautions Americans against using the government to perpetuate unscientific approaches to combat communicable disease and a reminder that invidious discrimination in the name of public health has a long history in the United States. 

Here, the permissibility of public health orders from state officials restricting the movement of interstate travelers in a pandemic should be weighed against the characteristics of the disease, the reasonability of the covered jurisdiction(s), and the relative treatment of nonresidents versus residents. Opponents of the state executive orders are unlikely to meet the high bar necessary to challenge state officials’ efforts to block new seeds of coronavirus contagion. Unlike other outbreaks, there is no clearly established standard for when individuals are infectious. So unless or until states can rapidly test asymptomatic individuals, it is unlikely that any court would be willing to question state officials’ restrictions on intrastate travel by individuals coming from designated jurisdictions. More problematic, perhaps, might be the breadth of the jurisdictions ordered for quarantine. Even still, 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. Except for a total ban on non-residents from identified jurisdictions entering a state that grossly mistreats non-residents over residents, it is hard to fathom any muscular judicial intervention.

The nation finds itself in a historic moment that will change how Americans live for the foreseeable future and will leave an indelible mark on American society. Governors and state public health officers will use every arrow in their quiver to stem the spread of the novel coronavirus. That much is clear. Some of these actions will inevitably raise honest concerns about civil liberties, and Americans should endeavor to debate the wisdom of government policy even amid a crisis to hold government actors accountable and protect constitutional values. However, the simple reality is this: federal courts will not enjoin temporary measures that are facially calculated to save lives.